Transcript Jean Monnet Chair of EU Labour Law Academic Year 2014

European Labour Law
Jean Monnet Chair of EU Labour Law
Academic Year 2014-2015
Silvia Borelli: [email protected]
http://www.unife.it/giurisprudenza/giurisprudenza/studiare/europe
an-labour-law
Please, check the web site for any materials distributed during the
course!
Lesson 6
Free Movement: Workers
EU workers have benefitted from the freedom to work in another Member State since the
1960s: this right was enshrined in the EU Treaties already at the launch of the European
project in 1957.
This right is now laid down in Article 45 of the Treaty on the Functioning of the
European Union (TFEU).
“Freedom of movement for workers shall be secured within the Union.
Such 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.
It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of
nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be
embodied in regulations to be drawn up by the Commission.
The provisions of this Article shall not apply to employment in the public service”.
Free Movement: Workers
Regulation (EU) No 492/2011 details workers' rights to free movement and
defines specific areas where discrimination on grounds of nationality is prohibited.
Who can benefit from this freedom?
• Jobseekers, i.e. EU nationals who move to another EU country to look for a job,
under certain conditions
• EU nationals working in another EU country
• EU nationals who return to their country of origin after having worked abroad.
• Family members of the above.
Rights may differ somewhat for people who plan to be self-employed, students, and
retired or otherwise economically non-active people.
Free Movement: EU citizens
In the Treaty of Maastricht, the right to free movement was recognised for all EU citizens,
irrespective of whether they are economically active or not as one of the fundamental freedoms
conferred on them by EU law (see whereas n. 1 and 2 dir. 2004/38).
Art. 21 TFEU: “Every citizen of the Union shall have the right to move and reside freely within
the territory of the Member States, subject to the limitations and conditions laid down in the
Treaties and by the measures adopted to give them effect.
If action by the Union should prove necessary to attain this objective and the Treaties have not
provided the necessary powers, the European Parliament and the Council, acting in accordance
with the ordinary legislative procedure, may adopt provisions with a view to facilitating the
exercise of the rights referred to in paragraph 1.
For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided
the necessary powers, the Council, acting in accordance with a special legislative procedure,
may adopt measures concerning social security or social protection. The Council shall act
unanimously after consulting the European Parliament”.
ART. 45 CFREU: “Every citizen of the Union has the right to move and reside freely within the
territory of the Member States. Freedom of movement and residence may be granted, in
accordance with the Treaty establishing the European Community, to nationals of third countries
legally resident in the territory of a Member State”.
Free Movement: EU citizens
EU citizens can reside on the territory of another EU country for up to three months without any conditions
other than the requirement to hold a valid identity card or passport (art. 6 Directive 2004/38).
To reside in another EU country for more than three months, EU citizens are required to meet certain
conditions depending on their status and may also be required to meet certain administrative formalities (art. 7
Directive 2004/38).
Workers and the self-employed, and their direct family members, have the right to reside without any
conditions.
Job seekers have the right to reside without any conditions for a period of six months and even longer, if they
continue to seek employment in the host EU country and have a "genuine chance" of getting work.
Students and other economically non-active persons (e.g. unemployed, retired, etc.) have the right to reside for
longer than three months if they have for themselves and their family sufficient financial means so as not to
become a burden on the host EU country’s social assistance system as well as health insurance.
EU citizens can acquire the right to permanent residence in another EU country after legally residing there for
a continuous period of five years (art. 16 Directive 2004/38).
The family members of EU citizens have the right to accompany or join them in another EU country, subject
to certain conditions.
Family members
The following members of a worker's family have the right to reside in the same
country, irrespective of their nationality:
• spouse
• registered partner (provided the host country treats registered partnerships as
equivalent to marriage)
• descendants who are under the age of 21 or are dependants
• dependent relatives in the ascending line (e.g. parents, grandparents).
When an EU national is working abroad in another EU country, family members also
have the right to reside and work in that country, regardless of their nationality.
Children have the right to be educated there.
Free Movement: EU citizens
Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights prohibit
discrimination on grounds of nationality within the scope of application of the EU Treaties.
Art. 18 TFUE: «Within the scope of application of the Treaties, and without prejudice to any
special provisions contained therein, any discrimination on grounds of nationality shall be
prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, may adopt rules designed to prohibit such discrimination”.
ART. 21 CFREU: “Within the scope of application of the Treaty establishing the European
Community and of the Treaty on European Union, and without prejudice to the special
provisions of those Treaties, any discrimination on grounds of nationality shall be
prohibited”.
See art. 24 Directive 2004/38.
After five years: EU citizens who have acquired the right of permanent residence are entitled
to social assistance in the same way as nationals of the host EU country. No derogations are
allowed under EU law.
Free Movement: EU citizens
Restrictions
«Member States may restrict the freedom of movement and residence of Union
citizens and their family members, irrespective of nationality, on grounds of public
policy, public security or public health. These grounds shall not be invoked to serve
economic ends” (art. 27 Directive 2004/38).
Abuse of Rights
“Member States may adopt the necessary measures to refuse, terminate or
withdraw any right conferred by this Directive in the case of abuse of rights or
fraud, such as marriages of convenience” (art. 35 Directive 2004/38).
Equal treatment: Workers
Any EU citizen has the same right to work in another EU country as nationals of that country under the same
conditions and without having to apply for a work permit.
No restrictions – quantitative limits or discriminatory recruitment criteria – can be placed on the recruitment of
nationals of other EU countries (art. 1 and 2 Regulation 492/2011).
Exceptions:
Language skills – job candidates from other EU countries may be required to demonstrate they have the
language skills needed for the job, but the level of language knowledge required must be reasonable and
necessary for the post. Employers cannot demand only a specific qualification as proof.
New EU countries – during a transitional period, access to employment may still be restricted for workers
from the EU's new member countries.
An EU national working in another EU country must be treated in exactly the same way as colleagues who are
nationals of that country regarding: working conditions; access to training; Social and tax advantages (These
might include fare reductions for large families on public transport, child benefits and minimum subsistence
payments; art. 7 Regulation 492/2011); membership of trade unions (art. 8 Regulation 492/2011); housing
(art. 9); access to education for children (art. 10).
Public sector
EU countries are allowed to reserve certain public-sector positions for their own
nationals. This is an exception to the general rule of free movement of workers and
must therefore be interpreted restrictively.
Only posts involving direct or indirect participation in the exercise of public
authority and duties designed to safeguard the general interest of the state may
be restricted to nationals.
These criteria must be assessed on a case-by-case basis, taking into account the
tasks and responsibilities covered by the post.
Equal treatment: Workers
The Directive 2014/54 aims to facilitate the uniform application and enforcement in
practice of the rights conferred by Article 45 TFEU and by Articles 1 to 10 of
Regulation (EU) No 492/2011(art. 1).
The Directive will require Member States to ensure:
• one or more bodies at national level will provide support and legal assistance to
EU migrant workers with the enforcement of their rights (art. 4)
• effective legal protection of rights (including for example protection from
victimisation for EU migrant workers who seek to enforce their rights) (art. 3)
• easily accessible information in more than one EU language on the rights enjoyed
by EU migrant workers and jobseekers (art. 6).
• promotion of social dialogue (art. 5).