Freedom of movement for workers

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.

Introduction

Article 39 of the amended EC Treaty states that:

# Freedom of movement for workers shall be secured within the Community.
# 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 implementing regulations to be drawn up by the Commission.
#The provisions of this article shall not apply to employment in the public service. [http://europa.eu.int/eur-lex/lex/en/treaties/dat/12002E/htm/C_2002325EN.003301.html Treaty of Rome] (consolidated version)]

The right to free movement is has both 'horizontal' and 'vertical' direct effective [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61993J0415:EN:HTML Case C-415/93] "Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman".] [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61998J0281:EN:HTML Case C-281/98] "Roman Angonese v Cassa di Risparmio di Bolzano SpA".] , 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) [ [http://www.ena.lu?lang=2&doc=823 Article 69] .] establishing the European Coal and Steel Community established a right to free movement for workers in these industries and the Treaty of Rome (1957) [ [http://www.ena.lu?lang=2&doc=3800 Title 3] .] provided 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. It also clarifies procedural issues, and it strengthens the rights of family members of European citizens using the freedom of movement.

Personal scope

Definition of worker

The meaning of 'worker' is a matter of European Community law. [ [http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61963J0075:EN:HTML Case 75-63] "Mrs M.K.H. Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten".] "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." [http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=685J0066 Case 66/85] "Deborah Lawrie-Blum v Land Baden-Württemberg".]
*Purpose. Under the ECJ caselaw, the rights of free movement of workers applies regardless of the worker's purpose in taking up employment abroad [http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=681J0053 Case 53/81] "D.M. Levin v Staatssecretaris van Justitie".] , so long as the work is not solely provided as a means of rehabilitation or reintegration of the workers concerned into society [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61987J0344:EN:HTML Case 344/87] "I. Bettray v Staatssecretaris van Justitie".] .
*Time commitment. The right of free movement applies to both part-time and full-time work, so long as the work is effective and genuine and not of such small scale, irregular nature or limited duration to be purely marginal and ancillary.]
*Remuneration. Remuneration is a necessary precondition for activity to constitute work, but the amount is not important. The right to free movement applies whether or not the worker required additional financial assistance from the Member State into which he moves. [http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61985J0139 Case 139/85] "R. H. Kempf v Staatssecretaris van Justitie".] Remuneration may be indirect "quid pro quo" rather than strict consideration for work. [http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=687J0196 ] "Udo Steymann v Staatssecretaris van Justitie".]
*Direction of another. Where a person is self-employed, he can avail himself of the freedom to provide services and freedom of establishment but not of the free movement of workers.

Free movement rights of nationals of 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 if 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. [cite web
last = European Commission
title = FAQ on the Commission's free movement of workers report
url = http://ec.europa.eu/employment_social/free_movement/enlargement_en.htm
accessdate = 2007-12-27 ]

Further the citizens of the member states of the European Economic Area have the same right of freedom of movement inside the EEA. Also, the European Union and Switzerland have concluded a bilateral agreement with the same meaning. Both EEA member states 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.

Material scope

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".Harvnb|Craig|de Búrca|2003|p=701]

Territorial scope

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. [http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61974J0036&lg=en Case 36-74] "B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo".] See also [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61994J0214:EN:HTML C-214/94] "Ingrid Boukhalfa v Bundesrepublik Deutschland".] .

References

Citation
last = Craig
first = Paul
last2 = de Búrca
first2 = Gráinne
year = 2003
title = EU Law: Text, Cases and Materials
edition = 3rd Edition
publisher = Oxford University Press
location = Oxford, New York
id = ISBN 0-19-925608-X

There are limitations to the freedom of movement though. These include: public policy, public security and public health.

See also

* Citizenship of the European Union
* Four Freedoms (European Union)
*Freedom of movement

External links

* [http://www.euractiv.com/en/enlargement/free-movement-labour-eu-25/article-129648 EurActiv Workers' Mobility section]
* [http://europa.eu.int/eures/main.jsp?acro=lw&lang=en&catId=490&parentId=0 EU Job Mobility Portal]
* [http://euobserver.com/9/20756#top Expectations]
* [http://ec.europa.eu/employment_social/free_movement/enlargement_en.htm#access2007 Transitional periods description]
* [http://news.bbc.co.uk/1/hi/world/europe/3513889.stm EU free movement of labour map] , BBC News Online, 2 January 2007, accessed 3 March 2007
* [http://www.obets.ua.es/pioneur/bajaarchivo_public.php?iden=40 The Free Movement of Persons in the European Union: A Legal-historical Overview]
* [http://ec.europa.eu/justice_home/fsj/freetravel/fsj_freetravel_intro_en.htm Free movement within the EU - a fundamental right] .