Report by Radboud University researchers to guide EU member states with the implementation of trade related mobility rights transparently
The mobility rights granted in EU free trade agreements are not implemented correctly in all 27 EU Member States. This conclusion is drawn by professor of European Migration Law Tesseltje de Lange and assistant professor of International and European Law Simon Tans, who recently wrote a report on behalf of the European Commission. The European Commission requested a scientific study on this topic due to its complexity (the intersection of international trade law and migration law) and the economic importance which comes with mobility connected to international trade. The report is based on reports of 27 national experts and practical examples, drawn in cooperation with Fragomen Immigration Lawyers in Brussels.
The study concerns five forms of labour mobility. The research demonstrates that the more ‘well-known’ forms of mobility – intra corporate transfers of, inter alia, higher management and business travellers visiting for business meetings – have been correctly included in national migration law. This is not the case for less well-known categories: employees of foreign companies which perform a contractual services, self-employed persons who provide services, or persons who temporarily visit the EU related to an investment. Where specific entry routes are missing, such persons, even if they are based in a state which has signed a free trade agreement with the EU, must rely on a suitable alternative entry route included in national migration law. That alternative will logically vary in all 27 Member States, and such alternatives are not always available at all. The EU will, in the latter instance, not act in conformity with its international obligations.
In a comprehensive study De Lange and Tans investigate how mobility rights, as included in three free trade agreements, are implemented in the legislation of the 27 EU Member states. The three investigated agreements are the WTO General Agreement on Trade in Services, the free trade agreement with a group of Caribbean states and the free trade agreement between the EU and Japan. The conclusions are also relevant for numerous similar free trade agreements, such as the agreement between the EU and the UK and the agreement with Canada (CETA).
The report provides an overview of alternative entry routes which can be used as well as best practices concerning implementation. De Lange and Tans conclude with three recommendations for the Commission: create new EU-legislation addressing the less well implemented categories of mobility rights. This ensures that the EU Member States will implement the free trade agreements correctly. Or, modify existing EU-legislation (such as the Schengen-visa legislation) to ensure the implementation of business mobility rights at EU-level. As a last resort each EU Member State should, based on the free trade agreements, implement these correctly in their national legislation. The report written by De Lange and Tans provides useful guidance in that regard.