Free movement of workers

Free movement of persons is one of the fundamental freedoms guaranteed by Community law. It is perhaps the most important right under Community law for individuals, and an essential element of European citizenship.

For workers, this freedom has existed since the foundation of the European Community in 1957. It is laid down in Article 45 TFEU and it entails:

• the right to look for a job in another Member State;
• the right to work in another Member State;
• the right to reside there for that purpose;
• the right to remain there;
• the right to equal treatment in respect of access to employment, working conditions and all other advantages which could help to facilitate the worker's integration in the host Member State.

The concept and implications of this freedom have been interpreted and developed by the case law of the European Court of Justice, including the concept of worker itself.

The emphasis on free movement of workers since the beginning of the European Economic Community distinguished labour regulation in the Community from national labour laws of the Member States, where free movement was not of concern, as well as from international labour standards. Labour standards focused on employment protection and industrial relations were not a primary concern of an EC aiming at free movement of workers, certainly in the earlier stages of the Community, but even later in the EU. The primary objective of establishing free movement of workers in a labour market was for long the dominant feature of EU regulation of employment and industrial relations.

The provisions of Article 45 TFEU are further developed in Council Regulation 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (as amended up to Regulation 2434/92) and Council Directive 68/360/EEC of 15 October 1969 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families. Further provisions include Regulation (EEC) No. 1251/70 of the Commission of 29 June 1970 on a worker’s right to remain in the territory of a Member State, after having been employed in that State.

These provisions entitle any EU national to take up and engage in gainful employment on the territory of another Member State, to equal treatment to national workers as regards working and employment conditions, social and tax benefits; his or her family members are also entitled to establish themselves, together with the worker, whatever their nationality. Nevertheless, employment in the public services is excluded from this provision (Article 45(4) TFEU), and there are permissible limitations when justified on grounds of public policy, public security or public health (Article 45(3) TFEU).

Council Regulation (EEC) No. 312/76 of 9 February 1976 amending the provisions relating to the trade union rights of workers contained in Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community provides that a national of one Member State working in another is entitled to equal treatment with the nationals of the host state with respect to the exercise of trade union rights, including the right to vote and to be eligible for the administration or management posts of a trade union. A non-national may be excluded from the management of bodies under public law and from the exercise of an office under public law. However, he or she has the right of eligibility for workers’ representative bodies within the undertaking.

States seeking membership of the EU have often had specific provisions in the Accession Treaty subjecting free movement to conditions. Following enlargement of the EU to 25 members by the accession of 10 countries on 1 May 2004, there were transitional periods that limited the free movement of workers from these Member States, except Malta and Cyprus. Until 2006, the access to the labour markets of the 15 former Member States exclusively depended on national policies. After mid-2006, these 15 Member States had to notify the Commission whether they would continue with national restrictions or allow free movement of workers. After 2009, any of these 15 Member State had to ask the Commission for authorisation to continue to apply national measures for a further two years – but only if it was experiencing serious disturbances in its labour market. This requirement had to be ‘objectively justified.’ From 2011, complete freedom of movement for workers from the Member States which joined in May 2004 is guaranteed. Similar transitional periods were agreed with regard to the 2007 enlargement by Bulgaria and Romania.

Although free movement is an economic, not a social concept, it creates many problems of a social nature: transfer of pensions and social benefits, entitlements of migrant workers to unemployment, social security and other benefits, family issues of education, housing, and so on. These social issues came to be dealt with not as independent social concerns, but under the rubric of economic free movement of labour. This created a tension in the balance between the economic and the social perceptions of free movement of workers. Policy initiatives, legislative provisions and court decisions were concerned with economic and not social consequences – that is, with possible restraints on free movement and not with the social implications of free movement of workers.

However, the overlap of EU economic and social policy in the area of free movement has been the source of major developments in EU social policy with potentially far-reaching implications. For example, the definition of ‘worker’ by the European Court under the Treaty provisions dealing with free movement developed independently of national legal definitions (Hoekstra (née Unger) v. Bestuur, Case 75/63, (1964) ECR 177) and has asserted its claim to override national legal definitions (Levin v. Secretary of State for Justice, Case 53/81 (1981) ECR 1035). This had important implications for the general regulation of employment and industrial relations in the EU, not only in the regulation of free movement.

Overall, the principle of free movement of workers as a founding principle of the common market had an initially dominant influence on the perception of the nature of labour regulation in the European Union. In contrast, there is the much later; and potentially critical, emergence of a right to free movement of persons, as citizens of the EU (Article 21 TFEU). Eliminating the need for an economic justification for the right to free movement based on work, this shift to free movement of citizens has wider consequences for the initiatives and actions of EU institutions active in the field of free movement.

See also: Community Charter of the Fundamental Social Rights of Workers; Charter of Fundamental Rights of the European Union; European Convention for the Protection of Human Rights and Fundamental Freedoms; European Social Charter; freedom of association; frontier workers; mobility of workers; occupational mobility; posted workers; right to constitute and freedom to join trade unions; trade unions.