The freedom of movement for workers is a policy chapter of the acquis communautaire of the European Union. It is part of the free movement of persons and one of the four economic freedoms: free movement of goods, services, labour and capital. Article 45 TFEU (ex 39 and 48) states that:
Contents
- History
- Definition of worker
- Extent of the right
- Discrimination and market access
- Public service exception
- Directives and regulations
- Social rights
- Transitional provisions in new member states
- Freedom of movement in the European Economic Area
- References
The right to free movement has both 'horizontal' and 'vertical' direct effect, such that a private citizen can invoke the right, without more, in an ordinary court, against other persons, both governmental and non-governmental.
History
The Treaty of Paris (1951) establishing the European Coal and Steel Community established a right to free movement for workers in these industries and the Treaty of Rome (1957) provided a right for the free movement of workers within the European Economic Community. The Directive 2004/38/EC on the right to move and reside freely assembles the different aspects of the right of movement in one document, replacing inter alia the directive 1968/360/EEC. It also clarifies procedural issues, and it strengthens the rights of family members of European citizens using the freedom of movement. According to the official site of the European Parliament, the explanation of the freedom of workers goes as follows:
Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship, which was established by the Treaty of Maastricht in 1992. Its practical implementation in EU law, however, has not been straightforward. It first involved the gradual phasing out, of internal borders under the Schengen agreements, initially in just a handful of Member States. Today, the provisions governing the free movement of persons are laid down in Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States. However, the implementation of this directive continues to face many obstacles.
Definition of "worker"
The meaning of 'worker' is a matter of European Union law. "The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."
Extent of the right
The right to free movement applies where the legal relationship of employment is entered into in or shall take effect within the territory of the European Community. The precise legal scope of the right to free movement for workers has been shaped by the European Court of Justice and by directives and regulations. Underlying these developments is a tension "between the image of the Community worker as a mobile unit of production, contributing to the creation of a single market and to the economic prosperity of Europe" and the "image of the worker as a human being, exercising a personal right to live in another state and to take up employment there without discrimination, to improve the standard of living of his or her family".
Discrimination and market access
Public service exception
Directives and regulations
Social rights
Transitional provisions in new member states
In both the Treaty of Accession 2003 and the Treaty of Accession 2005, there is a clause about a transition period before workers from the new member states can be employed on an equal, non-discriminatory terms in the old member states. The old member states have the right to impose such transitional period for 2 years, then to decide to extend it for additional 3 years, and then, if there is serious proof that labour from new member states would be disruptive to the market in the old member states then the period can be extended for the last time for 2 more years.
According to the principle of reciprocity, new member states have the right to impose restrictions for all the countries that introduced restrictions and transitional periods to their citizens. Croatia has decided to apply this rule.
Freedom of movement in the European Economic Area
The citizens of the member states of the European Economic Area (which includes the EU) have the same right of freedom of movement in the EEA as do EU citizens do within the Union. Additionally, the European Union and Switzerland have concluded a bilateral agreement with the same meaning. The EEA member states outside the EU (Norway, Iceland and Liechtenstein) and Switzerland are treated as "old member states" in regard to the Treaty of Accession of the new EU members, so they can impose such 2+3+2 transitional periods.
Switzerland initially granted freedom of movement to EEA citizens in 2005-2011. It briefly reimposed restrictions in 2012-2013, but lifted them again in 2014. A 2014 Referendum directed the Swiss government to impose permanent quotas on residence/work permits for citizens of all EEA countries except Liechtenstein, starting from 2017 at the latest. However, on 22 December 2016, Switzerland and the EU concluded an agreement that a new Swiss law (in response to the referendum) may require Swiss employers to give priority to Swiss-based job seekers (Swiss nationals and foreigners registered in Swiss job agencies) but does not limit the free movement of EU workers to Switzerland.
Liechtenstein imposes a permanent quota for all EEA citizens (issuing 56 residence permits per year) and a separate quota for Swiss citizens (a further 12 residence permits per year).