COUNCIL OF EUROPE
    COMMITTEE OF MINISTERS

    Recommendation Rec(2004)2
    of the Committee of Ministers to member states

    on the access of non-nationals to employment in the public sector

    (Adopted by the Committee of Ministers on 24 March 2004
    at the 877th meeting of the Ministers' Deputies)
     

    The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

    Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

    Recalling the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, and, in particular, its Article 8, which guarantees the protection of family and private life, its Article 14 which contains the principle of non-discrimination with regard to the rights granted, as well as the relevant case-law of the European Court of Human Rights;

    Recalling the 1961 European Social Charter and the 1996 Revised European Social Charter, and, in particular, Articles 18 and 19, as well as the relevant conclusions of the Committee of Independent Experts;

    Recalling the 1977 European Convention on the Legal Status of Migrant Workers;

    Considering that important rights have been granted to migrants admitted for employment under the European Convention on Social and Medical Assistance and its Protocol (1953), the European Convention on Establishment (1955), the European Convention on the Legal Status of Migrant Workers (1977), the Convention on the Participation of Foreigners in Public Life at Local Level (1992), the Revised European Social Charter (1996) and the European Convention on Nationality (1997);

    Having regard to Recommendation Rec(2000)15 of the Committee of Ministers to member states concerning the security of residence of long-term migrants, Parliamentary Assembly Recommendation 915 (1981) on the situation of migrant workers in the host countries, and Parliamentary Assembly Recommendation 712 (1973) on the integration of migrant workers with the society of their host countries;

    Having regard to Parliamentary Assembly Recommendation 1187 (1992) on relations between migrants and trade unions, Resolution (76) 11 of the Committee of Ministers on equal treatment for national and migrant workers with regard to vocational guidance, training and retraining;

    Considering that two European Committee on Migration (CDMG) reports on “Diversity and cohesion: new challenges for the integration of immigrants and minorities” and on “Framework for integration policies” have underlined that equal rights and opportunities are common values inherent to a democratic society and cultural diversity;

    Bearing in mind the Final Declaration adopted at the 7th Conference of European Ministers responsible for Migration Affairs, held Helsinki in 2002;

    Recognising that the presence of migrants and of foreign-born persons or persons with an immigration background with other/different linguistic skills and cultures can contribute greatly to strengthening the social cohesion of modern societies;

    Recognising that the public services have a particular responsibility to take the lead and set an example in their own employment practices, and thus in encouraging other sectors to pursue open employment policies in respect to migrants/ethnic minorities;

    Taking account of the legal framework which is currently being developed at the level of the European Union in order to implement a common migration policy, in compliance with the Treaty establishing the European Community as amended by the Treaty of Amsterdam and in accordance with the conclusions of the Tampere European Council,

    Recommends that the governments of member states apply the following principles in their legislation and administrative practice:1

    I. Scope of application

    1. For the purpose of this recommendation the term “public sector employees” applies to employees whose posts are funded partly or in full, directly or indirectly, from public funds at national, regional or local level.

    2. This recommendation applies to non-nationals, including stateless persons, who are granted free access to the national labour market in the member state.

    3. This recommendation does not apply to posts in the public sector that, according to national regulations, are reserved to nationals and necessitate:

    a. the exercise of public authority;
    b. a high level of responsibility to preserve important state interests;
    c. the exercise of public authority and responsibility for safeguarding the general interests of the state, namely "national security" and "state secrets".

    II. Action plans

    1. Member states should elaborate policies/action plans promoting the access of non-nationals to employment in the public sector which encourage them to apply for positions by:

    a. providing the migrant population with necessary information and by publishing specific job advertisements in journals which are likely to be read by them;
    b. developing easily accessible systems to identify equivalent qualifications;
    c. applying more flexible rules when assessing foreign qualifications or diplomas, provided foreign nationals have appropriate qualifications for the position and subject to the provisions of section I;
    d. promoting access to professional training;
    e. opening traineeship for applicants with an immigrant background.

    2. Member states should ensure equal treatment with regard to recruitment, promotion, employment conditions and salaries by adopting management strategies related to diversity in their human resources policies.

    3. Member states should consider commissioning the public sector administrations to develop action plans which promote ethnic and cultural diversity among their employees.

    4. Member states should undertake steps aiming at combating any form of discrimination or/and institutional discrimination regarding employment of non-nationals in the public sector.

    III. Competition for posts in the public sector

    1. Member states should provide, whenever possible, the possibility for non-nationals to participate in competitions for posts in the public sector.

    2. Non-nationals admitted for competition in the public sector should enjoy equal treatment with nationals in law and practice.

    3. Member states may take positive steps to encourage non-nationals to apply for posts in areas with a high percentage of non-nationals in their population or persons with an immigrant background.

    4. This should apply, in particular, in areas of the public sector where there is a need to reflect the diversity of society.

    5. This should also apply for posts in areas where their presence will be of benefit to the immigrant population and contribute to diversity.

    IV. Nationality/citizenship requirements

    1. Member states are invited to revise their national legislation, wherever possible, in respect of sectors or posts where the maintenance of the condition of nationality or citizenship is not essential.

    2. Member states are invited to commission an in-depth examination by appropriate institutions or persons of all public sector posts to identify those where nationality or citizenship status should not be required.

    3. In the case of sectors or posts where nationality or citizenship is required, other than those excluded under paragraph I.3, member states may consider opening them to non-nationals on, for example, a contractual basis.

    V. Language requirements

    1. Member states should only require language skills which are appropriate to the functions to be undertaken. Language fluency should be related to the job.

    2. Member states may wish to actively encourage amongst their public sector employees the further development of their language skills, in particular by facilitating their access to language courses.

    VI. Final provisions

    1. This recommendation is without prejudice to the option open to a member state to grant a more favourable legal status to non-nationals applying for employment in public sector.

    2. This recommendation assumes there will be no difference in the member states of the Council of Europe in treatment for the purposes of public sector employment between native-born and foreign-born nationals of the member state.

    3. Should such differences exist, member states could consider extending the scope of this recommendation to include foreign-born nationals of the member state.

    4. This recommendation does not affect the legal status of European Union nationals employed in other European Union member states or the legal status of non-European Union migrants admitted to employment in those states and to whom European Union agreements with third countries are applicable.

    5. This recommendation does not affect the rights of long-term migrants as defined in Recommendation Rec(2000)15 of the Committee of Ministers to member states concerning the security of residence of long-term migrants.

    6. Member states not having yet done so are encouraged to ratify the European Convention on Social and Medical Assistance and its Protocol, the European Convention on Establishment, the European Convention on the Legal Status of Migrant Workers, the Convention on the Participation of Foreigners in Public Life at Local Level, the Revised European Social Charter and the European Convention on Nationality.

Note 1 . Switzerland made the following reservation on the adoption of this recommendation: in Switzerland there are many different regulations from one canton to another relating to access to employment in the public sector (health, education, administration etc.). Accordingly, Switzerland reserves the right for its cantons to subject access to public employment to conditions based on nationality.


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