LeX-Ray

The free movement of workers is a fundamental freedom of Union citizens and one of the pillars of the internal market in the Union enshrined in Article 45 of the Treaty on the Functioning of the European Union (TFEU). Its implementation is further developed by Union law aiming to guarantee the full exercise of rights conferred on Union citizens and the members of their family. ‘Members of their family’ should be understood as having the same meaning as the term defined in point (2) of Article 2 of Directive 2004/38 of the European Parliament and of the Council ( 3 ) , which applies also to family members of frontier workers.

The free movement of workers is also a key element in the development of a genuine Union labour market, allowing workers to move to areas where there are labour shortages or more employment opportunities, helping more people find posts which are better suited to their skills and overcoming bottlenecks in the labour market.

The free movement of workers gives every citizen of the Union, irrespective of his or her place of residence, the right to move freely to another Member State in order to work there and/or to reside there for work purposes. It protects them against discrimination on grounds of nationality as regards access to employment, conditions of employment and work, in particular with regard to remuneration, dismissal, and tax and social advantages, by ensuring their equal treatment, under national law, practice and collective agreements, in comparison to nationals of that Member State. Such rights should be enjoyed without discrimination by all Union citizens exercising their right to free movement, including permanent, seasonal and frontier workers. The free movement of workers needs to be distinguished from the freedom to provide services, which includes the right of undertakings to provide services in another Member State, for which they may post their own workers to another Member State temporarily in order for them to carry out the work necessary to provide services in that Member State.

With respect to Union workers and members of their family exercising their right to free movement, Article 45 TFEU confers substantial rights for the exercise of this fundamental freedom, which are further specified in Regulation 2011/492 of the European Parliament and of the Council ( 4 ) .

The effective exercise of the freedom of movement of workers is, however, still a major challenge and many Union workers are very often unaware of their rights to free movement. Because of, inter alia, their potentially more vulnerable position, Union workers may still suffer from unjustified restrictions or obstacles to the exercise of their right to free movement, such as non-recognition of qualifications, discrimination on grounds of nationality and exploitation when they move to another Member State. There is, therefore, a gap between the law and its application in practice that needs to be addressed.

In July 2010, in its Communication entitled ‘Reaffirming the free movement of workers: rights and major developments’ the Commission pointed out that it would explore ways of tackling the new needs and challenges, in particular in the light of new patterns of mobility, facing Union workers and members of their family. It also stated that, in the context of the new strategy for the internal market, it would consider how to promote and enhance mechanisms for the effective implementation of the principle of equal treatment for Union workers and members of their family exercising their right to free movement. The Commission also summarised developments in legislation and case-law, in particular with regard to the personal scope of the Union law on free movement of workers and the substance of the rights enjoyed by Union workers and members of their family.

In the 2010 EU Citizenship Report entitled ‘Dismantling the obstacles to EU citizens' rights’ of 27 October 2010, the Commission identified the divergent and incorrect application of Union law on the right to free movement as one of the main obstacles that Union citizens are confronted with in the effective exercise of their rights under Union law. Accordingly, the Commission announced its intention to take action to facilitate free movement of EU citizens and their third-country national family members by enforcing EU rules strictly, including on non-discrimination, by promoting good practices and increased knowledge or EU rules on the ground and by stepping up the dissemination of information to EU citizens about their free movement rights (action 15 of the 2010 EU Citizenship Report). In addition in the 2013 EU Citizenship Report entitled ‘EU citizens: your rights, your future’, the Commission addressed the need to remove administrative hurdles and to simplify procedures for Union citizens living, working and travelling in other Member States.

In the Commission Communication entitled ‘Towards a job-rich recovery’ of 18 April 2012 (the Employment Package), the Commission announced its intention to: present a legislative proposal (information and advice) in order to support mobile workers in the exercise of rights derived from the TFEU and Regulation 2011/492, and urged Member States to: raise awareness of and access to rights conferred by Union law in relation to anti-discrimination, gender equality and free movement of workers and to open and facilitate access by Union citizens to public sector posts, in accordance with Union law, as interpreted by the Court of Justice of the European Union. In this context, the Court has consistently held that the restriction of access to certain posts in the public service to a Member State's own nationals is to be interpreted restrictively and that it covers only posts involving direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities.

Adequate and effective application and enforcement of Article 45 TFEU and Regulation 2011/492, as well as awareness of rights, are key elements in protecting the rights and equal treatment of Union workers and members of their family, whereas poor enforcement undermines the effectiveness of Union rules applicable in this area and endangers the rights and protection of Union workers and members of their family.

A more effective and uniform application of rights conferred by Union rules on the free movement of workers is also necessary for the proper functioning of the internal market.

The application and monitoring of the Union rules on the free movement of workers should be improved to ensure that Union workers and members of their family as well as employers, public authorities, and other persons concerned are better informed about free movement rights and responsibilities, to assist and to protect Union workers and members of their family in the exercise of those rights, and to combat circumvention of those rules by public authorities and public or private employers. In that context Member States may also take into consideration the effects of increased mobility, such as ‘brain drain’ or ‘youth drain’.

In order to ensure the correct application of, and to monitor compliance with, the substantive Union rules on free movement of workers, Member States should take the appropriate measures to protect Union workers and members of their family exercising their right to free movement against both discrimination on grounds of nationality and any unjustified restriction or obstacle to the exercise of that right.

To that end, it is appropriate to provide specific rules for effective enforcement and to facilitate a better and more uniform application of the substantive rules governing the freedom of movement of workers under Article 45 TFEU and under Regulation 2011/492. Enforcement of that fundamental freedom should take into consideration the principle of equality between women and men and the prohibition of discrimination of Union workers and members of their family on any ground set out in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

In that context, Union workers and members of their family who have been subject to discrimination on the grounds of nationality, or to any unjustified restriction or obstacles to exercising their right to free movement, should be guaranteed real and effective judicial protection. Where Member States provide for administrative procedures as a means of legal redress, they should ensure that any administrative decision may be challenged before a tribunal within the meaning of Article 47 of the Charter. Taking into account the right to effective legal protection, Union workers should be protected from any adverse treatment or consequence resulting from a complaint or proceedings which aim to enforce the rights safeguarded under this Directive.

In order to provide more effective levels of protection, associations and legal entities, including the social partners, should also be empowered to engage, as the Member States determine, either on behalf of or in support of any alleged victim, with his or her approval, in proceedings. This should be without prejudice to national rules of procedure concerning representation and defence before the courts and to other competences and collective rights of social partners, employees' and employers' representatives, such as those relating to the enforcement of collective agreements, where applicable, including actions on behalf of a collective interest, under national law or practice. With a view to ensuring effective legal protection, and without prejudice to the existing collective defence mechanisms available to the social partners and national law or practice, Member States are invited to examine the implementation of common principles for injunctive and compensatory collective redress mechanisms.

In accordance with the case-law of the Court of Justice, national rules on time limits for the enforcement of rights under this Directive should be such that they cannot be regarded as capable of rendering virtually impossible or excessively difficult the exercise of those rights.

Protection against discrimination based on the grounds of nationality would itself be strengthened by the existence of effective bodies with appropriate expertise in each Member State with competence to promote equal treatment, to analyse the problems faced by Union workers and members of their family, to study possible solutions and to provide specific assistance to them. The competence of those bodies should include, inter alia, the provision to Union workers and members of their family of independent legal and/or other assistance, such as the provision of legal advice on the application to them of the relevant Union and national rules on free movement of workers, of information about complaint procedures, and of help to protect the rights of workers and members of their family. It may also include assistance in legal proceedings.

It should be up to each Member State to decide whether to attribute the tasks to be carried out under this Directive to the bodies referred to above or whether to attribute those tasks to existing bodies with similar objectives at national level, for example, the promotion of free movement of persons, the implementation of the principle of equal treatment or the safeguarding of individual rights. Should a Member State decide to expand the mandate of an existing body, it should ensure allocation of sufficient resources to the existing body for the effective and adequate performance of its existing and additional tasks. Where the tasks are allocated to more than one body, Member States should ensure that they are adequately coordinated.

Member States should ensure that one or more of those bodies act as a contact point and that they cooperate and share information, such as the contact details of all the bodies, the means of redress and the contact details of the associations, organisations or other legal entities which provide information and services to Union workers and members of their family, with equivalent contact points in other Member States. The list of contact points should be made publicly available.

Member States should promote cooperation between the bodies designated by them under this Directive and existing information and assistance services provided by the social partners, associations, organisations or other relevant legal entities, such as organisations with responsibility for coordination arrangements under Regulation 2004/883 of the European Parliament and of the Council ( 5 ) and, where relevant, labour inspectorates.

Member States should ensure the promotion of synergies with existing information and support tools at Union level and, to that end, should ensure that existing or newly created bodies work closely with the existing information and assistance services, such as Your Europe, SOLVIT, Enterprise Europe Network, the Points of Single Contact and EURES, including, where relevant, EURES cross-border partnerships.

Member States should promote dialogue with the social partners and with appropriate non-governmental organisations to address and combat unjustified restrictions and obstacles to the right to free movement or different forms of discrimination on the grounds of nationality.

Member States should establish how Union citizens, such as workers, students and recent graduates, as well as employers, the social partners and other interested parties can be provided with easily accessible, relevant information on the provisions of this Directive and of Regulation 2011/492, including information about the bodies designated under this Directive and available means of redress and protection. Member States should take measures to make this information available in more than one official Union language taking into account demands in the labour market. This should not interfere with Member States' legislation on the use of languages. That information could be provided by individual counselling and should also be easily accessible through Your Europe and EURES.

In order to facilitate the enforcement of the rights granted under Union law, Council Directive 91/533/EEC ( 6 ) should be implemented and monitored consistently.

This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. Member States also have the possibility to extend the competences of the organisations entrusted with tasks related to the protection of Union workers against discrimination on grounds of nationality so as to cover the right to equal treatment without discrimination on grounds of nationality of all Union citizens exercising their right to free movement and the members of their family, as enshrined in Article 21 TFEU and in Directive 2004/38. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

The effective implementation of this Directive implies that Member States, when adopting the appropriate measures to comply with their obligations under this Directive, should provide a reference to this Directive or be accompanied by such a reference on the occasion of the official publication of implementing measures.

In accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents of 28 September 2011, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

After sufficient time for the implementation of this Directive has elapsed, the Commission should prepare a report on its implementation, evaluating in particular the opportunity to present any necessary proposal aiming to guarantee a better enforcement of Union law on free movement. In that report, the Commission should address the possible difficulties faced by young graduates looking for employment across the Union and by third-country spouses of Union workers.

This Directive respects the fundamental rights and observes the principles recognised in the Charter in particular the freedom to choose an occupation and the right to engage in work, the right to non-discrimination, in particular on grounds of nationality, the right to collective bargaining and action, fair and just working conditions, the right to freedom of movement and residence and the right to an effective remedy and a fair trial. It has to be implemented in accordance with those rights and principles.

This Directive respects the different labour market models of the Member States, including labour market models regulated by collective agreements.

Since the objective of this Directive, namely to establish a general common framework of appropriate provisions, measures and mechanisms necessary for the better and more uniform application and enforcement in practice of the rights relating to free movement of workers conferred by the TFEU and by Regulation 2011/492, cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale and effect of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,