In December 2002, the European Commission issued a Communication on the free movement of workers in the EU. The Communication examines some of the most important issues for migrants and their families that inhibit their freedom of movement, based partly on a substantial body of case law in this area emanating from the European Court of Justice.
Free movement of persons is one of the fundamental freedoms guaranteed by European Community law, and includes the right to live and work in another Member State. Initially, this freedom was essentially directed towards economically active people and their families, but today this right also concerns other categories such as students, pensioners and EU citizens in general. It is regarded as perhaps the most important right under Community law for individuals, and an essential element of European Union citizenship. In reality, however, full freedom of movement is far from being realised.
Key issues
In order to look at some of the most important issues for migrant workers and their families, the European Commission issued on 11 December 2002 a Communication on 'Free movement of workers - achieving the full benefits and potential' (COM (2002) 694 final). In the Communication, the Commission identifies a range of key issues which cause particular problems for citizens wishing to exercise their right to free movement, seeking to draw these to the attention of citizens and Member States.
Residence
The Commission states that conditions surrounding residence permits and access to employment can provide examples of unequal treatment between migrant workers and host-country workers. For instance, migrant workers may be required to pay for a temporary residence permit before being granted a full residence permit, and the latter may be made a condition of being allowed to work in the country – both practices which run contrary to Community law.
Access to employment and equal treatment in employment
The Communication highlights three main issues in this area, as follows.
Language requirements
Access to employment may be linked to proof of linguistic ability by host Member States. However, the language requirement must be reasonable and necessary for the job in question and must not be used to exclude workers. Further, the Commission considers that advertisements for jobs that require a particular language as a 'mother tongue' are not acceptable.
Professional qualifications
As regards professional qualifications, a system of mutual recognition of qualifications and diplomas has been put in place, but in some cases, where the field of activity is substantially different, a period of adaptation or an aptitude test may be required. Thus far, the automatic recognition of diplomas is provided for only a few professions, mainly in the field of health.
Portability of occupational pensions
The portability of occupational pension rights (EU0207201N) is another problem identified by the Commission, as is the position of migrant workers in relation to social advantages (such as public transport reductions for large families, child raising allowances and funeral payments) and tax deductions in relation to contributions for an occupational pension and private sickness and invalidity insurance.
Family members
Family members, whatever their nationality, have the right to reside with the migrant worker and to receive residence permits of the same length as the worker. Their children have a right to education in a host Member State, and they will retain their right to residence even if the migrant worker leaves the host Member State. Currently, a proposal for a Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM (2001) 257 final) is being discussed.
Social security
Social security matters are acknowledged to be one of the biggest issues inhibiting freedom of movement. Although Regulation 1408/71 exists to ensure that the application of different national social security systems does not adversely affect people exercising their right to free movement, Member States are required only to coordinate, not harmonise, their social security systems.
Regulation 1408/71 has been adapted, improved and extended many times, rendering it very complex and difficult to deal with. Thus the Commission submitted a proposal to simplify and modernise the Regulation in December 1998, and it is expected that it will be adopted by the end of 2003, while a proposal to extend the provisions of the Regulation to legally resident third-country nationals should come into force in early 2003 (EU0212205F).
Non-exportability of special non-contributory benefits
The Commission states that the status of certain 'exportable' benefits and healthcare between Member States needs to be re-examined in the light of European Court of Justice (ECJ) judgments. In general, social security benefits must be paid in whichever Member State the beneficiary resides, with the exception of a certain category of benefit called 'special non-contributory benefits'. These fall between traditional categories of social assistance and social security, aimed at particular problems such as care for people with disabilities or the prevention of poverty. As matters stand, these are payable only in the country that provides them, and cannot be exported by beneficiaries to another Member State. However, a citizen is entitled to receive the benefits of this nature that are provided in the host country.
Any citizen temporarily staying or residing in a Member State other than the one in which they are insured against sickness is entitled to receive sickness benefits in kind according to the legislation of this Member State, as if they were insured there – at the expense of the relevant insurance institution.
Healthcare
As regards healthcare, the Commission maintains that ECJ case law has rendered the present rules for patients seeking treatment in another Member State dense and complex. It has therefore initiated a dialogue with Member States and other 'stakeholders' in an attempt to make the present rules more transparent and more reliable. It has also established a joint forum for the discussion of this and related healthcare issues within the internal market.
Frontier workers
The issue of frontier workers – people who live in one Member State and work in another – is another area covered by the Communication. Frontier workers generally enjoy all the benefits granted to migrant workers in the Member State of employment, with the exception of unemployment benefit, which is granted in the country of residence. Nevertheless, there are a number of complex issues, largely connected to the provision of healthcare and social security and social advantages (such as special arrangements for tuition of children). Although some Member States have argued that frontier workers should not benefit from the same social advantages as 'normal' migrant workers, this has been rejected in ECJ case law, and the Commission is considering infringement proceedings against Member States which continue to impose residence conditions on social advantages for migrant workers.
Public sector employment
With regard to employment in the public sector, the Communication looks at issues such as access to employment in the public sector for migrant workers (taking into account certain allowable exceptions in the interest of safeguarding the general interest of the state), which include recognition of previous professional experience and seniority, and recognition of qualifications and diplomas.
Commentary
Although substantial progress has been made in making freedom of movement within the EU a reality, much remains to be done to ensure that workers may move between Member States freely. In an attempt to improve the situation, this Communication examines the very real barriers that persist. This represents a determined effort on the part of the Commission to clarify the interpretation and application of the rules for all involved, and to create a European labour market to the benefit of workers, employers and Member States. (Beatrice Harper, IRS)