Zoeteweij-Turhan, Margarite Helena

The Seasonal Workers Directive ‘…but some are more equal than others’
2017

The Seasonal Workers Directive, harmonising Member States’ laws regarding the entry, residence and certain labour rights of seasonal workers, entered into force in 2014 and should be implemented by Member States (except for the UK, Ireland and Denmark) by 30 September 2016. According to Article 23 of the Directive, in principle, third-country nationals coming to a Member State as seasonal workers are entitled to equal treatment with nationals of the host Member State. However, what does ‘equal treatment’ mean when there are almost no nationals doing seasonal work for comparison? Also, the Directive allows Member States to diverge from the principle with regard to family and unemployment benefits and education and vocational training. Furthermore, the Directive does not provide for family reunification, even though seasonal workers are allowed to work for periods of up to nine months per year in the host Member State. Considering the limitations to the principle of equal treatment, and the broad measure of discretion given to the Member States in the implementation of the Directive, can the Directive really improve the precarious position of seasonal workers? What is to be expected of the effectiveness of the Directive? Could the Directive also be attractive for application by countries (inside the EU or outside) that are not bound by the Directive? This article will try to answer these questions by critically analysing the Directive, setting it in historical perspective and comparing it other EU legal instruments on labour migration, focusing particularly on the content of a select number of rights. The article furthermore discusses the issue of gender equality in the (effects of the) EU regulation of labour migration. It finally also addresses the question of the attractiveness of the Directive for adoption by States that are not bound by it, in particular Switzerland, where the seasonal worker has remained a hot topic after officially having ‘disappeared’ from the radar in 2002.