by Fulvia Ristuccia
Since the outbreak of the Covid crisis the question of ‘essential workers’ has been at the forefront of the public debate. The discussion in Italy on the regularisation of non-EU migrant essential workers –which has eventually occurred through Article 103 of Law Decree of 19 May 2020 no. 34 (Law Decree ‘Rilancio’) and only regarding some sectors, namely agriculture and care services– sheds light in particular on the relation between the ‘usefulness’ (or better, the ‘essentiality’ in this case) of workers and their rights. Even though amnesty for irregular non-EU migrants is more than welcome and necessary, the right to work and reside does not as such guarantee freedom from exploitation, in so far as migrant workers are seen as factors of production and their rights are linked to their economic value.
In this sense, a reflection on intra-EU migration could offer useful insights because free movement for EU workers is one of the pillars of European integration and hence has a distinct position in the European legal system. EU workers enjoy a particularly advantageous status as Article 45 TFEU and further secondary legislation grant them the right to move and reside freely across Member States while prohibiting discrimination against them. Still, while the legal status of EU migrant workers is more secure than that of non-EU citizens, the narrative of intra-EU movement as crucial for cross-border solidarity sometimes does not seem to match with a reality of exploitation.
Covid-19 and essential activities: the troubling reality of exploitation of key migrant workers
After the outbreak of the Covid-19 pandemic, in addition to the restrictions of free movement that are a by-product of the lockdown measures, several Member States have reintroduced border controls within the Schengen area. At the same time, movement of third-country nationals working in essential sectors is not forbidden, although surely not encouraged. Thus, even if for migrants (especially frontiers and seasonal workers) it is more difficult to carry out their activities cross-border, securing intra-EU mobility has become crucial to ensure that labour shortages do not paralyse essential sectors, especially at a time when the pandemic has badly hit global supply chains.
Confronted with the threat of unavailability of mobile workers providing essential services, the Commission took action to counter the disruptive effects of movement bans on crucial supply chains. On 30 March 2020, the Commission issued a Communication on the Guidelines on the exercise of Free Movement (‘the Guidelines’), which identified some workers as essential, whose movement Member States should ensure. Among others, these are health and care workers and those in the food supply chain.
These measures are welcome and show that European States should react together in a moment of crisis, preserving the internal market and safeguarding its strengths. However, the identification of essential workers and a closer look at the essential activities exposes the way our society hinges on exploitation of migrant workforce in vulnerable conditions, often without providing neither corresponding protection nor acknowledgement.
Indeed, as Fasani and Mazza have shown, some of the essential sectors are strongly dependent on an over-represented migrant workforce. In the EU, among the essential workers, around 13% are migrants who also tend to be engaged more than nationals in key activities, e.g. in Italy 43% of intra-EU migrants fall within the category of key workers, compared to 31% of natives. Moreover, some of the essential sectors, such as care services and food supply chain, are precisely those most exposed –both before and during the pandemic– to labour exploitation and undeclared work. Remarkably, migrants (both intra and extra EU) are also over-represented in menial, low-skilled, insecure jobs. Indeed, migrants, whose mobility and flexibility better respond to great labour demand fluctuation, are more easily trapped in precarious unprotected works, where they often do not enjoy the safety net of own savings nor sufficient welfare protection.
In this sense, some have underlined the irony of the category of essential workers applied to migrant workers. Before the pandemic, many of them were simply, and almost derogatorily, low-skilled and low-income workers at the fringes of labour markets. Now, we seem to have discovered their essentiality: a troubling ‘upgrade’ which unveils multi-layered coercion. The threat of loss of income makes migrants’ work ‘twice essential’ –for them and society– forcing them to accept precarious and unsafe working conditions, which are in turn amplified by the exceptionality of the situation.
The Fundamental Rights Agency has underlined that many Member States have lowered labour standards for essential workers or ignored the need for increased protection. For instance, in Italy, domestic workers –predominantly migrant women, a large share of whom are EU citizens (see also Fasani and Mazza p. 14)– have been largely ignored in public income support measures, until the partial intervention of Law Decree ‘Rilancio’ (Article 85).
Likewise, labour and living conditions of EU seasonal workers in agriculture transported through charter flights to some European States confirm that these extraordinary circumstances are likely to cause even more severe exploitation and violation of fundamental rights of migrant workers. Host States (mainly western European States) promoted the transport of migrants in crowded charter flights and offered hosting facilities, which segregate guests and do not always ensure social distancing. Furthermore, there is evidence that, in times of economic crisis, labour inspections and standards enforcement diminish, thus exposing workers even more to safety hazards. For example, while Article 103, para 20 of the Law Decree ‘Rilancio’ has slightly enhanced labour inspection in agriculture, it has not done the same in the other sectors covered by the amnesty for irregular non-EU migrants.
Notwithstanding these known concerns, it appears that the Commission did not pay much attention to them in the Guidelines, where we find a very meagre encouragement to Member States to ‘communicate to the employers the necessity to provide for adequate health and safety protection.’ The European Parliament has been more attentive to the protection of essential workers, inviting the Commission to supervise on the protection of essential workers, as well as to the gender dimension of the exposure to increased health and economic risks. Apart from this, a proper debate at supranational level over the tools to ensure protection of their rights seems to be missing. This is rather disappointing, given that differently from nationals, migrants lack political representation in the host States, they often have limited consciousness of their rights and their level of unionisation is low. Thus, the venues for protecting their rights at a national level are limited.
It is probably not the role of free movement law as such to ensure protection of labour standards. However, they cannot be decoupled. Under a legal point of view, the Charter of Fundamental Rights applies within the scope of application of EU law and also the current EU political agenda through the European Pillar of Social Rights requires fair and just working conditions. Precisely for this reason, it would have been beneficial if European institution had encouraged more strongly a serious action against labour right abuses (such as abuse of posting and temporary agency) or undeclared work. Besides, supporting such action would be an effective way to facilitate the coordination of Member States in setting up ‘green lanes’ mentioned in the Commission’s ‘Guidelines for border management measures to protect health and ensure the availability of goods and essential services’. In the future this will help to coordinate efforts in ensuring orderly return to free movement and protecting public health. Perhaps, European Institutions could have called for an enhanced involvement of the recently established European Labour Authority (ELA) which should be at the forefront of the struggle against labour exploitation of mobile workers (be they posted, frontier or migrant workers). Operational since last October, the ELA’s mandate focusses precisely on the coordination of labour inspections and the prevention of undeclared work.
The discrepancy between the essentiality narrative and the commodification of workers
While problems of poor living and working conditions are typically more severe for non-EU migrants, the distance between the essentiality narrative and the reality is often greater for essential EU workers, whose movement is hailed as the pillar of European integration. It appears that the actual steps taken to protect them in times of health and economic crisis are limited and their work is frequently still treated as a commodity.
The President of the European Council has underlined in his statement of the 15th of April 2020 that ‘The Internal market is the beating heart of economic development and therefore of the European Union’s capacity for social cohesion. The internal market has been damaged. […] The first priority is to repair the internal market and make sure that it can function properly.’ This proves how crucial the internal market has become, but also how fragile it can be and how important it is that it does not lose its social function. Thus, besides considering free movement as an instrument of solidarity to safeguard essential services and goods, shouldn’t it be designed as well to protect the lives of those who exercise it and to value their work?
The Guidelines and the charter flights, aiming much more at ensuring the movement of essential workers so as not to disrupt essential supply chains than at safeguarding their health, display an understanding of free movement primarily focussed on the efficient allocation of resources. This raises the doubt that free movement of workers might be –at the moment– more a geared towards the protection ‘ways of life’ along class lines within rich Member States than the achievement of ‘the essential objective’ of European integration, namely ‘the constant improvements of the living and working conditions of their peoples’.
Green lanes and open borders are necessary, but equal treatment and labour and social rights might be even more important. Not surprisingly, there is evidence that EU workers were deserting the Italian agricultural labour market before the pandemic because of exploitative employment conditions, among other reasons. Then perhaps, now that we have realised the importance of essential migrant workers, we should focus on their dignity and their rights before expecting that they put their lives at risk to fill labour shortages. Otherwise, if labour rights protection is often already missing for those migrants who have clearly defined and well-established movement rights at supranational level, i.e. intra-EU migrant workers, what could be the chances that the others, to whom the State has conceded a highly conditional six-months right to reside, will see their rights better protected through regularisation?
 ‘Severe labour exploitation’ (FRA – European Union Agency for Fundamental Rights 2015) 25 and 49.
 European Commission, Employment and Social Developments in Europe 2015 (2016) 177.
 The 2018 Annual Report on Intra-EU Labour Mobility underlines the increasing short-term nature of care work. See Elena Fries-Tersch and others, ‘2018 Annual Report on Intra-EU Labour Mobility: Final Report December 2018.’ (2019) 99.
 Sonia McKay, ‘Transnational Aspects of Undeclared Work and the Role of EU Legislation’ (2014) 5 European Labour Law Journal 116, 119 and 128–129.
 Fries-Tersch and others (n 3) 107.
 McKay (n 4) 128–129.
 Preamble of the Treaty on the Functioning of the European Union.