Free movement of workers
Article 45 TFEU which regulates the issue of mobility, is considered to be one of the most important rights of EU citizens. The concept of a European labour market is underpinned by a right of workers to full mobility and, in the European Union (EU), this right is extended to cover the movement of workers between Member States. Free movement of workers was guaranteed to EU nationals by the Treaty of Rome and was regulated by Regulation 1612/68. The scope of this fundamental freedom was extended by Treaty amendments to provide a right of free movement of citizens of the EU. Free movement rights may also carry rights to remain (worker’s right to remain) and of residence, provided that EU citizens do not become a burden on the finances of the host Member State. This means that Member States are entitled, under the Treaty, to impose public policy limitations on the free movement of workers, for example on specified grounds of public security and public health. However, procedural requirements (Council Directive 64/221/EEC) must be observed when such limitations are imposed.
The Treaty provides a wide definition of persons covered by the term ‘worker’ (worker and employee) to cover all those engaged in economic activity, but also to include students engaged in vocational training and unemployed persons looking for work. Free movement of self-employed workers was also guaranteed through Treaty provisions on freedom of establishment and freedom to provide services. Protection of such migrant workers extends to their family members (spouses, registered partners, children, relatives and dependents) and includes social advantages such as entitlement to housing and education.
The Treaty promotes the removal of barriers to the mobility of workers and particular attention is paid to the mobility rights of frontier workers, who live in one Member State and work in another. Occupational mobility is an important element in achieving this objective. The importance of the acquisition of skills in new technologies to promote participation in new labour markets is regarded as paramount to securing the employability of workers. The European Employment Services, EURES, provide services for the benefit of workers, employers and citizens wishing to benefit from the principle of free movement. The task is to identify the main barriers to the development of these labour markets, particularly in the area of skills and mobility.
To help facilitate the free movement of workers and services, the EU passed legislation to facilitate the recognition of professional qualifications in 2005. Council Directive 2005/36/EC on the recognition of professional qualifications, which Member States had to transpose into national law by 20 October 2007, was designed to streamline 15 directives relating to recognition rules. The consolidated directive states that EU citizens have ‘the right to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they have obtained their professional qualifications’.
Enlargement and free movement
Although the free movement of persons is a fundamental precondition of the common market and an essential element of European citizenship, transition to full mobility of workers remains one of the most controversial issues regarding the accession of the new Member States in 2004 and 2007. This led to the insertion of a clause into the Accession Treaty in 2003, in order to help alleviate widespread fears that enlargement would lead to ‘social dumping’ – the movement of ‘cheaper’ labour from central and eastern European countries into the old EU15 Member States. Transitional arrangements were agreed, giving the EU15 Member States the option to restrict access to their labour markets to workers from the EU8 countries of central and eastern Europe. This provided for a ‘2+3+2 year arrangement’ where each old Member State decides which restrictions will be applied.
Currently, the majority of EU15 Member States do not impose restrictions limiting the free movement of workers, as far as the countries from the 2004 accession round are concerned. These include the Ireland, Sweden and the UK which permitted free movement of citizens with effect from 1 May 2004. They were followed by Finland, Greece, Portugal and Spain as of 1 May 2006 and by Italy as of 27 July 2006. The Netherlands lifted all restrictions on 1 May 2007 and Luxembourg on 1 November 2007. In relation to Bulgaria and Romania which joined the EU on 1 January 2007, there was provision for Member States to limit the right of free movement of persons for the first two years, with provision for further transitional measures for another three years. These restrictions are to end on 31 December 2013.
Schengen and immigration
EU law has been supplemented by other measures concerned with regulating movement across internal borders and external borders. In 1985, five Member States agreed to cooperate on abolishing checks at shared borders and visa policy by signing the Schengen agreement/convention. Since August 2008, most of the EU27 countries are members of the Schengen group, with the exception of Cyprus, Bulgaria, Ireland, Romania and the UK. Iceland, Norway and Switzerland, although not EU Member States, have also implemented the Schengen convention.
Although the principle of free movement is primarily concerned with the movement of Member State citizens within the EU, following the Treaty on European Union of 1992, immigration from outside the European Community (EC) was dealt with on an intergovernmental basis under the third pillar, namely Justice and Home Affairs. However, visa policy for non-EU nationals, so-called third-country nationals, fell under EU law. Article 61 EC (now Article 67 TFEU) aimed at the progressive establishment of ‘an area of freedom, justice and security’. This provides for judicial cooperation in civil matters and administrative cooperation, and it also refers to police and judicial cooperation in criminal matters. The new provisions deal with border controls – internal and external – and rights of third-country nationals, including freedom to travel within the EU, visa policy, and refugees and asylum. Once within the EU, however, protections exist in relation to conditions of work and social security.
In 2008, under the French Presidency, a European immigration pact was concluded and was endorsed at the European Summit in October 2008. The act aims to promote the harmonious integration of migrants who are likely to settle permanently; it also intends to create a balance between calls for stricter control of migratory flows and respect for developing countries, as well as the human rights of asylum seekers.
The protection of migrant workers requires that discrimination based on nationality be prohibited. This includes direct and indirect discrimination, unless there is objective justification for the latter, such as language requirements for employment. There is equal entitlement to social security benefits, pensions and as regards working conditions and terms of employment, including trade union rights (free movement and trade union rights). However, important obstacles remain in the area of portability of some of these rights: those related to social security and supplementary pensions.
Workers may also move across national borders within the EU as a consequence of their employment with an employer carrying out transnational economic activities in more than one Member State. In the case of such posted workers, Community law imposes an obligation on the employer to respect the labour standards of the host country. Council Directive 96/71/EC concerning the posting of workers in the framework of provision of services guarantees respect for the rights of posted workers to certain terms and conditions of employment, although these rights have to be seen in the context of the European Court of Justice cases of Laval and Viking.