1. European Labour Law
Jean Monnet Chair of EU Labour Law Academic Year Silvia Borelli: Please, check the web site for any materials distributed during the course! Lesson 5

2. 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”.
See as well Articles 1-3 of the Community Charter of the Fundamental Social Rights of Workers

3. 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”.

4. 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.

5. Free Movement: Workers
Why is mobily of labour assured within the EU?
See Whereas (4) Reg. No. 492/2011
What is the main instrument to guarantee the right of freedom of movement?
See Whereas (6) Reg. No. 492/2011
Principle of non-discrimination on the ground of nationality must be guaranteed in respect of:
Eligibility for employment
Any condition of employment and work
Social and tax advantages (these might include fare reductions for large families on public transport, child benefits and minimum subsistence payments)
Training
Membership of trade unions
Housing
access to education for children.

6. 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.

7. 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.

8. 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); in particular, MS shall ensure that associations and organisations which have a legitimate interest in ensuring the enforcement of the Directive may engage, either on behalf or in support of, Union workers and their family, with their approval, in any judicial and/or administrative procedure for the enforcement of the right conferred by Art. 45 TFEU and Reg. No. 492/2011.
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).

9. 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.

10. Free Movement: EU citizens
EU citizens have the right to leave the territory of a MS to travel to another MS (Article 4) and the right to enter the territory of any MS (Article 5). 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.

11. Free Movement: EU citizens
EU citizens have the right of residence as long as they do not become an unreasonable burden on the social assistance system of the host Member State (Article 14).
An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State (Article 14).
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, if the EU citizen has the right to here reside.

12. 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.

13. 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).

14. Social Security Coordination
Regulation 883/2004/EC ensures that mobile EU citizens remain protected by social security coverage after they move, essentially by deciding which one of the relevant Member States is responsible for the social security coverage. Workers — employed or self-employed —and their dependants are covered by the host country's social security system under the same conditions as own nationals - because they contribute, like all other national workers, through their contributions and taxes to the public funds from which the benefits are financed. For mobile EU citizens who are not working in the host Member State, the rule of the state of employment cannot be applied as, by definition, there is no country in which such people are working. The Member State of residence becomes responsible for the social security coverage only once such citizens pass a strict habitual residence test, proving that they have a genuine link with the Member State in question.

15. Social Security Coordination
Economically non-active EU mobile citizens account for a very small share of beneficiaries and the budgetary impact of such claims on national welfare budgets is very low. They represent less than 1% of all such beneficiaries (of EU nationality) in six countries (Austria, Bulgaria, Estonia, Greece, Malta and Portugal) and between 1% and 5% in five other countries (Germany, Finland, France, The Netherlands and Sweden). Art. 48 TFEU: «The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self- employed migrant workers and their dependants: (a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries; (b) payment of benefits to persons resident in the territories of Member States. Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either: (a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legis­lative procedure; or (b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted”.

16. Social Security Coordination
The rules on social security coordination do not replace national systems with a single European one. All countries are free to decide who is to be insured under their legislation, which benefits are granted and under what conditions.
The four main principles:
You are covered by the legislation of one country at a time so you only pay contributions in one country. The decision on which country's legislation applies to you will be made by the social security institutions. You cannot choose.
You have the same rights and obligations as the nationals of the country where you are covered. This is known as the principle of non-discrimination.
When you claim a benefit, your previous periods of insurance, work or residence in other countries are taken into account if necessary.
If you are entitled to a cash benefit from one country, you may generally receive it even if you are living in a different country. This is known as the principle of exportability.