Originally the Treaty establishing the European Economic Community has contained provisions to ensure the free movement of workers and not the free movement of persons. The rules on the free movement of workers had to be applied only to economically active persons (employees, self-employed and service providers). The free movement of workers has been one of the corner stone of the common market and the internal market.
The broader idea of free movement of persons has gradually become one of the basic fundamental rights of the EU. The aim of the integration process was to lay the foundations of an ever closer union among the peoples of Europe. Finally, in 1993, with the Treaty of Maastricht, the provisions of the free movement of people, as a fundamental right of European citizenship, was introduced. According to Article 18 of the EC Treaty every citizen of the European Union shall have the rights to move and reside freely within the territory of the European Union. The Council may adopt provisions to facilitate the exercise of these rights. These provisions are to be adopted in the co-decision procedure and in Unanimity.
In the application of the free movement of persons the antidiscrimination clause of the EC Treaty (Article 12 of the EC Treaty) is also essential, stipulating that within the scope of the Treaty any discrimination on the ground of nationality shall be prohibited within the EU. The equal treatment was basically granted to economically active persons or their Family members. However in the jurisprudence of the European Court of Justice the right for equal treatment has received a broader interpretation by giving it to students (case 293/83 Gravier ruling) and tourists (case 186/87 Cowan) temporarily resident in a Member State as recipient of a service.
The free movement within the Member States requires common rules in the EU and third countries relations concerning asylum policy, crossing the external borders of the Union and immigration policy. These policies of the EU are also known as the third pillar policies, even if part of these third pillar policies, after the Treaty of Amsterdam signed in 1997, became part of the Community policies.
The rules on the free movement of persons can be found in the primary and the secondary legislation of the EU, however for their implementation legislation is necessary also at national level.
Free movement of workers
freedom of movement for workers shall be secured within the Community. To secure the free movement of workers (a) equal treatment of EU nationals should be ensured, (b) national legislation should avoid any kind of different working conditions between workers from different Member States, (c) coordination of social security systems is necessary.
The freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. The conditions of labour mobility and the expansion of employment opportunities make it easier and more efficient to find the right people with the right qualification and experience. The common European labour market promotes the efficiency of the European economy.
The free movement of workers shall entail the right subject to limitations justified on grounds of public policy, public security or public health:
The provisions of the free movement of workers shall not apply to employment in the public service.
The underlying principle is that of equal treatment, with every citizen of a Member State enjoying the right to take up paid employment in another Member State under the conditions applicable to that Member State's own nationals. The freedom shall be applied to workers and their Family member, therefore the definition of workers has a paramount importance. The European Court of Justice defined the concept of worker within the Community stating that the essential characteristics of the worker is that during a certain period of time he performs services for and under the direction of another in return for remuneration. In addition he or she must be a national of a Member State, but nationality is determined according to the national legislation (See more in Case 66/85 Lawrie-Blum vs Land Baden Württemberg). Later the definition of worker was extended not merely to present workers, but to one who, having lost his job and is capable of taking another (See more in Case 75/63 Hoekstra). The ECJ went still further stating in the Case 139/85 Kempf that free movement of workers is a fundamental right therefore it should be interpreted broadly to persons who pursued effective activity as an employed person, even on a part-time basis. As far as living and working conditions are concerned, migrant workers have the same rights as nationals of the host country (trade union membership, social benefits etc.).
The free movement of workers is only useful if workers can maintain their rights to social security benefits when moving from one Member States to another. Article 42 of the EC Treaty provides for migrant workers and their dependants aggregation of all periods taken into account under the laws of the several countries and payments of benefits to person resident in the territories of Member States.
Regulation (EEC) No 1612/68 contained the basic rules for the free movement of workers. The definition of Family members is stipulated in the Regulation. According to it the families are the workers’s spouse and their descendants who are under the age of 21 years or are dependants and dependent relatives in the ascending line of the worker and the worker’s spouse. The ECJ worked out detailed rulings of the perception of family. For example the ECJ stated that the divorce do not automatically put an end to non-EC spouse’ rights (see more in the Case C-370/90 R vs. Immigration Appeal Tribunal). The children of the marriage or the worker’s dependent relatives even after divorce remain members of the worker’s family.
The Union has adopted a new Directive in 2004on the right of citizens of the Union to move and reside freely within the Member States (1). The Directive should be transposed by Member States until the 31 st of April 2006. It merges into a single instrument all the legislation on the right of entry and residence for Union citizens, consisting of two previous regulations and nine directives. This simplification will make it easier not only for the general public but also for public authorities to exercise their rights. The Directive also sets out to reduce to the bare minimum the formalities which Union citizens and their families must complete in order to exercise their right of residence and provides a better definition of the status of Family members and to limit the scope for refusing entry or terminating the right of residence.
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Definitions
Union citizen = any person having the nationality of a Member State.
Family member = the spouse; the registered partner, if the legislation of the host Member State treats registered partnerships as equivalent to marriage; the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined above; the dependent direct relatives in the ascending line and those of the spouse or partner.
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2006 has been designated the European Year for Workers’ Mobility. The website of the Year for Worker’s is:
http://www.europa.eu.int/comm/employment_social/workersmobility2006/whats_on_en.htm
2. Free movement of non-economically active persons
As it was expressed before the free-movement of persons, including the non-economically active persons became a fundamental right of the EU citizens after the entry into force of the Maastricht Treaty. These rights are also regulated by the new Directiveon the right of citizens of the Union to move and reside freely within the Member States.
The conditions in which Union citizens and their families exercise their right to move and reside freely within the Member States for up to three months : All Union citizens have the right to enter another Member State by virtue of having an identity card or valid passport. Under no circumstances can an entry or exit visa be required. Where the citizens concerned do not have travel documents, the host Member State must afford them every facility in obtaining the requisite documents or having them sent.
Family members who do not have the nationality of a Member State enjoy the same rights as the citizen who they have accompanied. They may be subject to a short-stay visa requirement under Regulation (EC) No 539/2001. Residence permits will be deemed equivalent to short-stay visas.
For stays of less than three months, the only requirement on Union citizens is that they possess a valid identity document or passport. It does not include the requirements of the economic activity. The host Member State may require the persons concerned to register their presence in the country within a reasonable and non-discriminatory period of time.
The right of residence for more than six months is subject to certain conditions. The applicant must:
Residence permits are abolished for Union citizens. However, Member States may require them to register with the competent authorities within a period of not less than three months as from the date of arrival. Proof of registration will be issued immediately on presentation of:
Family members of Union citizens who are not nationals of a Member State must apply for a residence permit for Family members of Union citizens. These permits are valid for at least five years from their date of issue.
The death of the Union citizen, his or her departure from the host Member State, divorce, annulment of marriage or termination of
Partnership does not affect the right of Family members as equivalent to marriage; the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined above; the dependent direct relatives in the ascending line and those of the spouse or partner.');"> Family members who are not nationals of a Member State to continue residing in the Member State in question, subject to certain conditions.
Union citizens acquire the right of permanent residence in the host Member State after a five-year period of uninterrupted legal residence, provided that an expulsion decision has not been enforced against them. This right of permanent residence is no longer subject to any conditions. The same rule applies to Family members as equivalent to marriage; the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined above; the dependent direct relatives in the ascending line and those of the spouse or partner.');"> Family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years' absence from the host Member State.
Permanent residence permits are valid indefinitely and are renewable automatically every ten years. They must be issued no more than three months after the application is made. Citizens can use any form of evidence generally accepted in the host Member State to prove that they have been continuously resident.
Union citizens qualifying for the right of residence or the right of permanent residence and the members of their family also benefit from equal treatment with host-country nationals in the areas covered by the Treaty. However, until the right of permanent residence has been acquired, the host Member State is not obliged to grant entitlement to social security to persons other than employed or self-employed workers and the members of their family. Family members as equivalent to marriage; the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined above; the dependent direct relatives in the ascending line and those of the spouse or partner.');"> Family members, irrespective of their nationality, will be entitled to engage in economic activity on an employed or self-employed basis.
Union citizens or members of their family may be restricted from the host Member State on grounds of public policy, public security or public health. It relates to measures concerning entry into the territory, issue or renewal of residence permits, or expulsion from the territory, taken by Member States on grounds of public policy, public security or public health. Such grounds may not be invoked to service economic ends. Measures taken on grounds of public policy or public security must be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions do not automatically justify such measures. Nor the mere fact that the entry documents used by the individual concerned have expired does not constitute grounds for expulsion.
Before taking such a restrictive decision, the Member State must assess a number of factors such as the period for which the individual concerned has been resident, his or her age, degree of integration and family situation in the host Member State and links with the country of origin. The decision should be adopted no latter than within 6 months after the application.
The person concerned by a decision refusing leave to enter or reside in a Member State must be notified of that decision. The grounds for the decision must be given and the person concerned must be informed of the appeal procedures available to them. Lifelong exclusion orders cannot be issued under any circumstances. Persons concerned by exclusion orders can apply for the situation to be reviewed after a maximum of three years. The Directive also makes provision for a series of procedural guarantees.
3. Self employed people
The provisions on the free movement of workers were extended to cover the self-employed. The self-employed category comprises the so called liberal professions. The self-employed people are entitled to freedom of establishment, so they have the right to pursue their professional in any Member States and to set up and run a company in any Member States according to the same rules as the nationals of the host country.
4. Recognition of professional qualifications
Qualification requirements are often the main barriers of the free movement of workers and the exercise of the right of establishment. Members State are willing to protect their national markets by setting special qualification requirements. However qualification requirements could essentially differ in Member States as to their length, content and other elements. These differences can build a serious obstacle in front of the free movement of workers. To avoid this the Union tried to harmonise the professional requirements for example for architects chemists, doctors. But the approximation was to slow and has not brought the efficiency. Therefore the Member States adopted the principle of mutual recognition in the area of higher education diplomas and other professional education and training. As a fundamental principle the mutual recognition principle ensures that Member States mutually recognise the others diplomas under the special circumstances. However in some professions the recognition should be admitted by a special national or local authority. To obtain the recognition the national authority may require proof of professional experience, or an adaptation period or a transitional test.
It can be stated that still one of the major obstacles for people wanting to work or learn in another EU country, or indeed to move between different parts of the labour market, is that their qualifications and competences may not be accepted. To tackle these obstacles, the EU has introduced several instruments, aiming at facilitating the transfer of qualifications and competences for academic or professional purposes. Sectoral provisions were adopted in the following sectors:
To facilitate Transparency and recognition of degrees and qualifications for academic purposes, the network of National Academic Recognition Information Centres ( NARICs ) was created at the Commission's initiative in 1984. It covers all EU and European Economic Area (EEA) countries providing authoritative advice and information on the academic recognition of diplomas and periods of study undertaken abroad ( See more on www.europa.eu.int website).
Several instruments were worked out at EU level to help the recognition of diplomas and vocational qualifications. For example the common European format for Curriculum Vitae being a simple and efficient presentation of individual qualifications and skills; or the Europass training, a passport indicating the knowledge and experience acquired in formal and non-formal training.
5. Databases to facilitate the labour mobility
In order to be able to make informed decisions about mobility, job-seekers and employers need information on a wide range of practical, legal and administrative questions. In order to encourage worker mobility, the EURES (European Employment Services) network was launched in 1994 (see more on http://www.europa.eu.int/eures/home.jsp?lang=en website).
This network, in 27 countries (the Member States of the European Union, Norway and Iceland), provides information in two areas:
The EURES covers Working Conditions database containing details on a number of important issues such as finding accommodation, finding a school, taxes, cost of living, health, social legislation, comparability of qualifications, etc.
Is also groups information on current trends on the European labour market by country, region and sector of activity.
Even if the community legislation on the free movement of workers and free movement of persons is well advanced, practical measures are still needed in order the ensure the efficient exercise of the citizens rights. In this respect it is essential to inform individuals more fully about their rights; to have a more flexible interpretation by the Member States of the rules governing right of residence; to facilitate the access to employment in another Member State; to define more precisely the public-service posts which are reserved for nationals; to modernise social security rights; to have more flexible rules for reuniting families; to have greater equality in tax treatment.
To achieve these purposes the Member States need to cooperate more closely with one another, especially in border regions, to provide better training for their officials and to devote more attention to the protection of individual rights.
Having the mobility of European citizens as a legislative reality, further steps are still needed as regards tax arrangements, supplementary pension schemes and recognition of qualifications.
For the completion of the free movement a persons the abolishment of the internal borders checks are necessary. The Single European Act of 1986 set out the idea of an internal market comprising "an area without internal frontiers in which the free movement of (...) persons is ensured". The practical resolution for this problem was the signature of the Schengen Agreement in 1985 by France, Germany and the Benelux countries establishing the principle of the free movement of all persons residing or travelling in their territories. The Schengen Area has gradually been extended to include thirteen old EU Member States (only the United Kingdom and Ireland have not signed these agreements) and the 10 new is intend to be part of the Schengen system after fulfilling the requirements.
In parallel the removal of internal borders was envisaged with tougher controls at the European Union's external borders and it required a common visa policy and t he European Union's asylum policy.
6. Derogations from the free movement of workers
The free movement of persons is a fundamental right, therefore it is only restricted on the public policy ground explained above. However the free movement of workers is an economical factor which could and should directly effect the national markets. The free movement of workers can essentially influence the labour market of the Member States. During the enlargement process the EU Member States were willing to restrict the free movement of workers of the new Member States for a certain period of time. It has happened in the case of the last enlargement of the EU in 2004, when 10 Central and Eastern European countries joined to the EU. According to the accession Treaty of these countries the EU 15 “old” Member States could maintain there restrictive provisions concerning the movements of workers, but the stand still clause should be applied. The timeframe for this transitional period was 2+3+3 years taking into account the real impact of the enlargement on the labour market. On bilateral basis the old Member States could open up their labour market for the new countries. Ireland, Sweden and the UK have decided not to apply the transitional period and have opened up their market or the new Member States citizens.
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1) European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their
Family members to move and reside freely within the territory of the
Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC , 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
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