3.2.2.     Freedom of movement for workers

LEGAL BASIS

Articles 3(1)(c), 14 and 39 to 42 (3(c), 7a and 48-51) ECT.

OBJECTIVES

• Increasing the Community's workers' chances of finding work and adding to their professional experience;
• encouraging the mobility of workers, as a way of stimulating the human resource response to the requirements of the employment market;
• developing contacts between workers throughout the Member States as a way of promoting mutual understanding, creating a Community social fabric and hence "an ever closer union among the peoples of Europe", the main aim of the Treaties.

ACHIEVEMENTS

Following two provisional schemes (regulations and directives of 16 August 1961 and 25 March 1964), permanent arrangements on freedom of movement were introduced with Regulation 1612/68 of 15 October 1968 (amended by Regulations 312/76 and 2434/92) ^[1] and Directive 68/360 of the same date.

In addition to this legislation, it is worth mentioning the extensive case law of the Court of Justice, particularly the Van Duyn judgment of 4 December 1974 (41/74), which affirmed the direct applicability of freedom of movement when the transitional period ended (1 January 1970).

1. Current general arrangements on freedom of movement

Any citizen of a Member State has the right to move freely with his or her family to other Member States in order to take up employment and to work under the same conditions as citizens of those countries.

a. Workers' rights of movement and residence

• Movement: Community citizens are entitled to leave their country of origin (which may not insist that they have an exit visa) in order to go to another Member State; the latter may not require them to hold an entry visa; an identity card or a passport is sufficient. As part of efforts to scrap all checks on people at internal Union frontiers (* 2.3.0), the Commission has proposed amending Directive 68/360 to remove the requirement to produce an identity document when crossing the frontier ^[2].
• Residence: The right of residence is regarded as being linked to the right to take up a job [under Article 39 (48) (3)(a) ECT, as it entails the right ‘to accept offers of employment actually made'] and so should not be exercised simply in order to look for work. After three months, which is considered sufficient time to find a job, the right of residence should result in the issuing of a permit (other than the residence permit for "ordinary" foreigners) called a "Residence Permit for a National of a Member State of the EEC" (Article 4 of Directive 68/360): it is issued on production of the identity card with which the person in question crossed the border and of a statement of engagement from the employer or a certificate of employment. It is issued automatically (whereas other foreigners receive ‘permission' to reside, which implies that the national authorities have discretionary powers). The permit is valid for at least five years and is automatically renewable even if holders have lost their job.

b. Rights of entry and residence for family members

• The spouse of a worker who is a Community national, their children who are under 21 or dependants, and their dependants in the ascending line have the right to settle with the worker (Regulation 1612/68, Article 10(1)), provided the worker has housing that is considered suitable (Article 10(3)).
• If they are citizens of a Member State they may not be required to hold an entry visa and are also themselves entitled to be issued with a Residence Permit for a National of a Member State of the EC. If they are nationals of a third country, they may need to have a visa but they receive a residence permit with the same validity as that of the worker.

c. Work

-   Taking up employment:
Nationals of a Member State have the right to take up employment within the territory of another Member State on the same terms as national workers (Article 1 of Regulation 1612/68). National provisions which are restrictive (limiting the number or percentage of foreigners who may be employed per company or per sector at regional or local level or reserving certain jobs for nationals) or discriminatory (subjecting foreigners to procedures or conditions which do not apply to nationals, e.g. work permits) are not, therefore, applicable to Community citizens. Spouses and children of workers are also entitled to work even if they are not Community citizens (Article 11 of Regulation 1612/68).

-   Treatment at work: Community workers must be treated in the same way as national workers:

• in respect of any conditions of employment or work, especially as regards remuneration, dismissal and reinstatement or re-employment (Regulation 1612/68, Article 7(1) and (4)),
• in the case of benefits not directly connected with employment, i.e. social and tax advantages, including vocational training, housing benefits, aid intended to ensure a minimum subsistence level and family allowances (Article 7(2) and (3) and Article 9 of Regulation 1612/68).
• in respect of trade union responsibilities and staff representation duties in their undertaking, although they may not be allowed to take part in the management of bodies governed by public law (they may not be elected to social security authorities).

d. Right to remain in the host country after working there

Laid down in the EC Treaty [Article 39 (48) (3)(d)], this right was spelled out in the Commission Regulation of 29 June 1970 (1251/70) which allows workers to remain permanently in the state where they last worked, provided they have worked and lived there for three years or have reached the age of retirement or suffer from permanent disability. The same goes for those members of their family who live with them.

2. Restrictions on freedom of movement

a. Restrictions on the right of entry and residence

The EC Treaty [Article 39 (48) (3)] entitles Member States to refuse to allow Community nationals to enter or live in their territory on grounds of public policy, public security or public health. A directive of 25 February 1964 (64/221) however, attaches certain conditions to this power and the Court of Justice has kept a careful watch to ensure they are fulfilled.

The reservation on the grounds of public health is well defined as it only applies to the diseases or disabilities listed in the directive (Article 4). The concepts of public policy and public security are not well defined but the directive (Articles 2 and 3) sets limits to them: if they are cited, an appeal may not be based on economic grounds but solely on the personal conduct of the individual concerned: the mere existence of criminal convictions or the simple expiry of the identity card will not constitute sufficient grounds.

In the absence of a definition in Community law, the Court of Justice has assumed the right to monitor Member States' interpretation of what public policy means. According to jurisprudence:

• States may only have recourse to the public policy reservation exceptionally and in a limited way;
• measures may not be collective or reflect a wish to achieve general exclusion;
• finally, in accordance with the principle of equality of treatment, the conduct in question must also be punishable when exhibited by nationals.

b. Restrictions on taking up jobs in the public service

The EC Treaty [Article 39 (48) (4)] ruled out freedom of movement in the case of "employment in the public service". In order not to leave the assessment of this concept to the discretion of Member States, where the legal situation of public service employees varies so much and the Member States could abuse this exemption, the Court of Justice was obliged to define it. It rejected the description of the legal relationship between the worker and the public service (manual worker, non-manual worker or official; public law or private law relationship, see Case 66/85, 3 July 1986) as a criterion and adopted a functional view: jobs in the public service were those "which involve direct or indirect participation in the exercise of powers conferred by public law" as characterised by exercise of a power to constrain individuals or by association with higher interests, such as the internal or external security of the State.

In a statement on 5 January 1988, the Commission listed the activities which it considered formed part of the "public service": these were, firstly, the specific functions of the State and allied bodies, such as the armed forces, the police and the other forces of order, the judiciary, the tax authorities and the diplomatic service and, secondly, employment in government departments, regional authorities and other similar bodies, and central banks, where this involved staff (officials and other employees) who carried out activities organised on the basis of a public legal power of the state or of another legal person governed by public law.

3. Measures to encourage freedom of movement

a. Mutual recognition of training

Freedom of movement is often hampered by differences in training from one Member State to another.

This is true particularly in the case of regulated professions for which states have prescribed purely national certificates and diplomas which they require the citizens of other states to possess, thus restricting considerably the practical significance of the freedom to take up employment without formally contravening the rule of non-discrimination on the basis of nationality. Not being able to harmonise the training concerned, the Community has followed the course of mutual recognition of certificates and diplomas:

• firstly for specific professions;
• then on the basis of general systems of equivalence.

Such mutual recognition was introduced primarily so that the professions covered could be practised on a self-employed basis (for details, * 3.2.3) but it also applies, of course, to employed persons.

The problem also exists in the non-regulated professions where failure to possess national professional qualifications, which are often the only ones known to employers, may hamper chances of finding work. Here the Community has introduced comparability of vocational qualifications: on the basis of a Council decision of 16 July 1985, comparability has been ensured for skilled workers in 19 vocational sectors; the result was published in the form of tables in the Official Journal. (The work was carried out by a specialised body, Cedefop, and completed in 1993.)

b. Exchanges between young workers

To encourage freedom of movement, the EC Treaty [Article 41 (50)] stipulated that Member States should encourage the exchange of young workers within the framework of a joint programme. This was first carried out through the PETRA programme ^[3], which lasted from 1988 to 1994: it was aimed at young people between 16 and 28 undergoing non-university vocational training, and provides grants to enable them to spend from three weeks to three months doing vocational training in another Community country. Some 45 000 young people benefited. After 1994 the PETRA machinery was integrated in the wider framework of the Leonardo da Vinci programme.

c. The EURES (European Employment Services) network

This was set up by Commission Decision 93/569/EEC of 22 October 1993 implementing Regulation 1612/68 mentioned above, to facilitate access to information by workers seeking a job in a Member State other than their own. This network is a data bank of job vacancies and applications (incorporating data from national administrations) and on living and working conditions in the Member States.

PROCEDURE REFERENCES

[1] Codecision Procedure: COD0185, Cooperation Procedure: SYN0359
[2] Codecision Procedure: COD95202
[3] Consultation Procedure: CSA3969

06/11/2000