Contribution of the Basque Government to The

CONTRIBUTION OF THE BASQUE GOVERNMENT TO THE

SUBSIDIARITY MONITORING NETWORK OF THE COMMITTEE OF THE REGIONS

SUBSIDIARITY ANALYSIS SHEET

Name of the Authority:

Primary contact person:

Classification:
See list below*
Other Policies Concerned:
See list below*
Title: / Communication from the Commission to the Council, the European
Parliament, the European Economic and Social Committee and the Committee of the Regions on circular migration and mobility partnerships
Reference: / COM ( 2007) 248
Typeofdocument:
See list below **
CoR Commission
See list below***
Reporter:

The correct application of the SUBSIDIARITY principle is verified following confirmation that the principle of competence allocation has been respected.

SUBSIDIARITYANALYSIS

Verification that the principle of competence allocation has been respected.

1. Legal Basis:

1.1 Which Treaty articles is the document based on?

1.2 Are all the proposed individual measures covered by the correct legal basis?

As the communication on circular migration and mobility partnerships between the European Union and third countries does not include a legislative act, the exact legal basis on which it is based is not defined. However, mobility partnershipsmust have a complex legal basisaffecting a series of components, some of which shall be thecompetenceofthe Communityand others of theMember States.

Thesemobility partnerships correspond principally tolegal and illegal immigration policy, as it is linked tomany other policies. Therefore, without intending to be exhaustive,and limitingour analysis exclusively to the Treaty on the European Community, Article 62 which regulates the crossing of “external borders” is particularly relevant, as the borders represent the channel for the movement of the migratory flows, and where the concurrent exercise ofcompetences bythe ECand itsMember States are admitted, given that the latter maintain thepowerto enter intointernational agreementswith third States, provided that the regulations adopted by the Community under development in this regulationand set out in Council RegulationEC539/2001, of 21stMarch 2001, which lists the third countries whose nationals must be in possession of visas when crossing the external EU borders and those whose nationals are exempt from that requirement provided that the period of residence in the EU does not exceed three months, are respected.

Likewise, the development of immigration policycannot be separated from the asylum policy laid out in Article 63.1 and 2 of theTECand the relationbetween immigration and humanitarian situations requiring international protection includedin the asylum policy.

We must not forget that questions of European citizenship and the free settlement of personsare also affected by this communication, as we would be faced with a dichotomybetween European Union citizens and foreigners, and in the latter category, the “legal classification” between the different types of foreigners: privileged, semi-privileged or unprivileged, which are classifiedby virtueof the existence or otherwise of family ties, exercise of professional activities or the existence of agreements drawn up for this purposebetweenthe EU (itsMember Statesand the States of origin of these persons of a statute which is more or less similar to that of Union citizensin relationto the free movement and residence in community territory). As a result, only unprivileged foreigners shall be “natural” recipients of the EU migration policy measures.

The impact of these mobility partnerships on the integration policies of the Member States, their regions and local authorities must also be considered, whereby the integration of these persons is the exclusive competence of the Member States.

By virtue of the new Reform Treaty, the communitycompetencein terms of immigrationshall be increasedwith Article 69 (b) of the Treaty on the Functioning ofthe EU, which also applies the qualified majority vote to the area of legal migration, although the allocation of the quota of immigrants remains in the hands of thenational sovereignty.

Does the principle of SUBSIDIARITY apply?

2. Type ofcompetence:

As the proposal fails to specify the exact legal basis of the mobility partnerships within the scope of the Member State and the EU, we shall only report generically, although in accordance with legal and illegal immigration policy, mobility partnerships must have a complex legal basis affecting a series of components, some of which shall be the competence of the Community and others of the Member States (in the case of bilateral agreements with third countries). Only those legal acts that fall within the framework of competences shared withthe EU shall be subject to the application of the principles of subsidiarity and proportionality.

At an internal level, the distribution of competences in terms of migration is non-existentas Article 149.1.2ª of the Spanish Constitution establishes the exclusive competence of the Statein relation to “Nationality, immigration, emigration, status of aliensand asylum rights”.

Competencein this area is therefore exclusive to theMemberState.

In this respect, the regulation is essentially based on Organic Law4/2000, of 11th January, on the rights and freedoms of foreigners in Spain and their social integration, which regulatesthelegal system for foreigners, Title II, entry and exit requirements for foreign citizens to and from Spanish territory(Chapter I), status of foreigners (Chapter II), and the system of work permits (Chapter III).

For this purpose, it is interesting to point out that the Second Additional Stipulation of the Lawhas provideddiverse cooperation measureswith the Autonomous Communities in relation to theexclusive competencesrecognised by law in relation to social welfare, affecting foreign citizens, as well as thoserelated to the implementation of employment legislation set out in their respective statutes.

It states“With respectto the territorial situation and the particular impact of the migration boom, and the powers set outin their respective Statutes of Autonomyin relation to employment and social welfare, and in accordance with them, subcommittees may be set up in the heart of Bilateral Cooperation Commissions between the State and the Autonomous Communities, in accordance with the stipulations of their respective Statutes of Autonomy, to analyze questions related to the employment and residence of foreigners which affect them directly.”

We must also point outthat the current Statute of Autonomy of Catalonia[1], sets out the followingcompetences of the Regional Government of Catalonia in relation to immigration:

“Article 138:Immigration

1. In matters concerning immigration, the Regional Government has:

Exclusive power regarding the initial reception of immigrants, which includes socio-sanitary attention and guidance.
Development of the integration policy for immigrants within the framework of its powers.
Establishment and regulation of the required measures for social and economic integration of immigrants and for their social participation.
Establishment by law of a referential framework for the reception and integration of immigrants.
Promotion and integration of returning immigrants and their assistance, and facilitation of their return to Catalonia through the pertinent policies and measures.

2. The Regional Government has executive power in authorising work to foreigners whose employment is in Catalonia. This power, which shall be coordinated with that of the State regarding the entry and residence of foreigners, includes:

Processing and assignation of initial work authorisations for employed and self-employed workers.
Processing and resolution of appeals presented with regard to cases arising from paragraph a) above and the application of the inspection and sanction system.

3. The Regional Government shall participate in State decisions concerning immigration which are especially important for Catalonia and shall have preceptive participation in determining the contingent of foreign workers by means of the mechanisms established in Title V”.

Finally, the following competences have been granted to the Autonomous Community of Andalusia in its new Statute of Autonomy[2]:

“Article 62:Immigration

1. The Autonomous Communityis responsible for:

Integration and social, economic and cultural participation policies for immigrants within the framework of its powers.
Executive power in authorising work to foreigners whose employment is in Andalusia in coordination with that of the State regarding the entry and residence of foreigners and in accordance with the provisions of State legislation This power includes the processing and assignation of initial work authorisations, the processing and resolution of appeals presented in relation to these authorisations and the application of the inspection and sanction system.

2. The Autonomous Communityshall participate in State decisions concerning immigration which are especially important for Andalusia Catalonia and shall have preceptive participation in determining the contingent of foreign workers by means of the mechanisms established in Title IX.”

Verification of the conditions associated with the SUBSIDIARITY principle

3. Necessity Test:
3.1.1 Has action at EU level become necessarybecause Member States (within the framework of their national constitutional systems) are unable to sufficiently achieve the objectives of the proposed measure?
3.1.2 Is this inability linked to the trans-national natureof the problem in question (i.e. it concerns more thanone MemberState)?
3.1.3 Would national measures alone or lack of
Community action significantly damage the interests of Member States in some other way? / 3.Necessity Test:
3.1.1The EuropeanCouncilaims to incorporatelegal immigration opportunities into the EU external policies. TheMember Stateswithin the framework of their national constitutional systems are unable to sufficiently achieve the objectives of the proposed measure.
3.1.2. TheCommunication from the Commission aims to identify new approaches to improve the monitoring of the legal movement of persons between the EUandthird countrieswhich are willing to make important efforts to combat illegal immigration, so it is clearly a trans-national issue.
3.1.3. The action of each MemberState is not affected by this proposed measure.
4. Clear Benefit Test:
4.1 If action by Member States were insufficient, could the objectives be better achieved by action on the part of the Community?
4.2 Would action at Community level provide clear benefits due to impact?
4.3 Can problems encountered by individual Member States be overcome by means of targeted assistance provided under existing measures? / 4. Clear Benefit Test:
4.1. The Commissionaims to develop the concept ofcircular migrationand its practical application.It aims to improve the organization of the diverse means of legal movement between the EUandthird countries.
4.2. Community actionshall be more efficient.However, in this specific case, special attention must be paid to the competences of each of the Member Statesbecausethe package of measures proposed by the Commissionunder the name of “mobility partnerships” shall have a complex legal nature as it affects a seriesof components which at times shall be the competenceofthe Communityand at other times of theMember States.
4.3 The communication’s proposal is not viable unless it is via EU community action with third countries.
5. Minimal Scope Test:
5.1 While respecting Community law, are the established national arrangements and specialcircumstances being applied in individual Member States? (e.g. Is the organisation and functioning of legal systems respected?) / 5. Minimal Scope Test:
The Committee’s Communication states that anymobility partnershipmust be based on clear political guidelines of the Council, on the basis of a recommendation by the Commission.
The competence action of Member States is prioritized through the Communication.
6. Quality of the arguments provided:
6.1 Does the proposal provide adequate arguments in clear terms to show that the conditions laid down by the SUBSIDIARITY principle are respected?
/ 6. Quality of the arguments provided:
The arguments set out in the proposal clearly show the suitability of the proposal which has been madein response to a request by theEuropean Council.

Proportionality

7. Effectiveness Test:
7.1 Are the means used to achieve the objective appropriate? / 7. Effectiveness Test:
As the Communication aims to facilitatethe legal movement of persons betweenthird countriesandthe EU, and particularlycircular immigration, it contributes towards covering the employment requirements of the EUand helping the countries of origin to optimize the benefits and limit the negative effects of emigration, hence reducing many incentives for illegal immigration.
8. Efficiency Test:
8.1 Do these means go beyond what is necessary tosatisfactorily achieve the objective? / 8. Efficiency Test:
The proposed measures adapt to the objective.
9. Minimal Legal Constraint Test:
9.1 Is the form of Community action (choice ofinstrument) as simple as possible?
9.2. Is the use of a regulation sufficiently justified orwould a (framework) directive be more suitable?
9.3 Is it explained why alternative regulatory methods(such as co-regulation or self-regulation) have notbeen selected? / 9. Minimal Legal Constraint Test:
Community action in this case is as simple as possible. It is not legislated. It is a Communication from the Commission.
Some proposals have been put forward which require other guidelines in order to be approved.
There is no legal restriction to member countries.
10. Minimal Cost Test:
10.1 Is the need for any burden, whether financial oradministrative, falling upon the Union, nationalgovernments, regional or local authorities, economicoperators and citizens minimised and in proportion with the objective to be achieved? / 10. Minimal Cost Test:
No cost provision has been detailed.
11. Minimal Scope Test:
11.1 Will the Community action leave as much scopefor national decision as possible?
11.2 While respecting Community law, are the established national arrangements and special circumstances being applied in individual Member States? (e.g. Is the organisation and functioning of legal systems respected?) / 11. Minimal Scope Test:
The Communication indicated the need for greater coordination and cooperation between the CommissionandMemberStatesto avoid an invasion of powers. The functioning of legal systems is intended to be guaranteed at all times.
12. Quality of the arguments provided:
12.1 Does the proposal provide adequate arguments inclear terms to show that the conditions laid down bythe proportionality principle are respected? / 12. Quality of the arguments provided:
Thearguments usedare appropriate to achieve the objective although a great deal of development is still required.
We have also seen how community action to date and at the beginning of the process is as simple as possible.
Consultations, impact assessment, economic evaluation of its application are required in order to establish whether the arguments presented show that the conditions laid down by the proportionality principle are respected.

Monitoring of work carried out in preparation for the proposal

13. Consideration of local and regional factors in the consultation and impact analysis
13.1 Has an impact assessment been made? / 13. Consideration of local and regional factors in the consultation and impact analysis
The Commissionaims to initiate a consultation process based on this Communication to obtain opinions and experiences of other community institutions of MemberStatesand interested parties.
On the other hand, it aims to make exploratory contact with a limited number of countries potentially interested in mobility partnershipsand willing to cooperate actively with the EUin the monitoring of migration flows.

Vitoria-Gazteiz, January 11th, 2008

[1]Organic Law 6/2006, of 19th July, reforming the Statute of Autonomy of Catalonia

[2] Approved by Organic Law 2/2007, of 19th March, reforming the Statute of Autonomy of Andalusia