Free movement of workers: rights and restrictions Business environment in the EU Prepared by Endre Domonkos (PhD) 1st Semester, Academic Year 2016/2017 1

I. The free movement of persons The universal right of free movement was no enshrined in the Treaty of Rome. The Treaty of Maastricht introduced the freedom of movement as a fundamental right that all EU citizens have, irrespective of whether they have economic activity. There are still different rules for various groups, depending on the economic nature of their activities , if any. The free movement of these three groups is based on the same underlying principle: non-discrimination. 2

II. The common labour market I. The EEC Treaty: creating a common labour market in relation to workers. Article 45 of the TFEU: key rights of workers. The freedom of movement was achieved in 1968. Secondary legislation of the Union: workers are entitled to bring with their spouses and dependants, even if they aren't national of any Member State. Article 48 of the TFEU: migrant workers can „carry over” the rights acquired 3

II. The common labour market II. The social security systems: national competence and necessary coordination between those systems. Nowadays, all persons residing legally in a Member State have equal rights of movement and residence in the other States of the Union. Directive 2004/38: replacement of complex legislation relating to different categories of beneficiaries (salaried an non salaried workers). Directive 2000/43: prohibition of discrimination throughout the EU in different areas (employment, education, social security, health care + access to goods and services). 4

II. The common labour market III. General framework set up by the EU in order to fight against discrimination on grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Prohibition of discrimination applies to nationals of third countries as well. Article 45§ 4 of the TFEU: it excludes employment in the national public service from the principle of the free movement of workers. The principle of free movement of workers cannot be hindered by the rules of sport associations (see the case of Bosman judgment). 5

III. Social security and other measures for migrant workers I. Appropriate protection by European provisions in the field of social security. Article 48 of the TFEU: measures, which are necessary for the rights acquired under national legislation through arrangements to secure migrant workers and their dependents. Coordination of social security systems: social security rights acquired in the various Member States may be aggregated. The equal guarantee of supplementary pension rights of employed and self-employed persons moving within the EU. 6 6

III. Social security and other measures for migrant workers II. Unemployed person: to be paid the employment receives by the benefits of the country in which he or she was employed. Arrangements, which cover self-employed persons and their families. Health insurance: European health insurance card („European card). Simplification in the access to care in the country visited. 7 7

III. Social security and other measures for migrant workers III. European Employment Service (EURES): network of 400 „Euroadvisers”. EURES: fundamental instrument by networking the employment services of the EEA countries (28 Member States of the EU, plus Norway, Iceland and Liechtenstein and Switzerland). The administrative coordination is provided by the European Coordination Office (“Eures Coordination Office”). Consultation with the High-Level Strategy Group by the Commission. 8 8

III. Social security and other measures for migrant workers IV. Europass: one of the main instruments to support mobility in the EU. Enabling citizens to provide proof of their qualifications and skills anywhere in Europe. Five documents: 1. Europass – Curriculum vitae 2. Europass – Mobility 3. Europass – Diploma supplement 4. Europass – Certificate supplement 5. Europass – Language portfolio. 9 9

IV. Exemptions from the free movement of workers Exemptions from the free movement of workers: certain restrictions against foreign workers by the Treaty. Article 45 of the TFEU: restrictions, which must be justified on grounds of public policy, public security or public health. Limitations in relation to a state's public service. But such limitations can only be an exception to the rule and have to be properly justified. 10 10

V. The freedom of establishment I. Self-employed persons form a separate category based on European Union law. This category includes those working in the so-called liberal professions. These people are entitled to freedom of establishment. Freedom of establishment: it covers both natural persons and legal entities. Secondary establishment: to set up a branch or subsidiary of an existing firm or company in another Member State. 11

V. The freedom of establishment II. The European Company Statute at the Nice Summit in December 2000. The European Company Statute: legal instrument, which gives companies the option of forming a European Company. Exemptions from the freedom of establishment principle: restrictions by the Member States on the basis of public policy, public security or public health. Exemptions may only be applied in duly justified cases. 12

VI. The free movement of non-economically active persons I. With the Treaty of Maastricht, the freedom of movement became a fundamental right of every citizen of every Member State of the European Union. This is due to the fact that the Treaty of Maastricht created the institution of Union citizenship. Citizenship of the Union means four specific rights. There are no restrictions whatsoever on EU citizens on short- term visits (travelling). All citizens of the Union are free to travel to and stay in another Member State for a period of three months. 13

VI. The free movement of non-economically active persons II. Free movement involves not only the right to travel freely, but also the right to stay in any Member State for a sustained period, which includes the freedom to work, study, reside and stay in all Member States. This also means that citizens of the EU are free to choose their domicile in the area of the Union. However, if they intend to stay in a Member State for a period longer than three months, they need a residence permit. 14

VI. The free movement of non-economically active persons III. Free movement and travel to other Member States is facilitated by the fact that there are practically no border controls inside the EU. By integrating the Schengen Agreement and subsequent Schengen legislation (the so-called Schengen acquis) into the European Union and the acquis communautaire, the Amsterdam Treaty largely removed controls on passenger traffic on borders within the Union, except for the United Kingdom and Ireland. Moreover, citizens of the Union can cross the border with their identity cards (rather than passports). 15

VII. Recognition of professional qualifications I. Abolition of apparent discriminations in compliance of the Treaty, but remaining obstacles related to the freedom of establishment. Article 53 of the TFEU: issue directives for mutual recognition of diplomas, certificates and other evidence of formal qualifications by the EP and the Council. Directive on the recognition of professional qualifications. Directive 2005/36: distinction between „regulated professions” and „professional qualifications”. 16

VII. Recognition of professional qualifications II. Aptitude test: limited to the professional knowledge of the applicant, made by the competent authority of the host Member State. The substance of the recognition of professional qualifications by the host Member State. Allowing the free provision of services in case the service provider moves to the territory of the host Member State to pursue on a temporary and occasional basis, the regulated profession. 17

VII. Recognition of professional qualifications III. Grouping into five levels of various national education and training schemes. The main aim of Directive 2005/36: to prevent the circumvention of national requirements by having qualifications recognised in another Member State + asking the country of origin to recognise them in turn. Automatic recognition of qualifications in the case of doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, pharmacists and architects. The recognition of professional qualifications for lawyers. 18

VIII. Conclusion Single market: realisation in 1993. Free movement of workers and freedom of establishment for self-employed persons as fundamental rights in the EU. In the field of free movement of workers: the principle of non- discrimination. The Treaty of Maastricht: creation of the institution of European citizenship. Exemptions from the free movement of workers and freedom of establishment. 19

Literature - Nicholas Moussis (2013): Access to the European Union. Intersentia, 20th edition, pp. 131-141. - Zoltán Horváth (2011): Handbook on the European Union, Chapter 6: The internal market and the four freedoms. Fourth Edition, Hvgorac, pp. 243-267. - The European Commission, The Single Market. In:http://ec.europa.eu/internal_market/top_layer/index_15_en.htm - EUROPA > Summaries of EU legislation > Internal market > Living and working in the internal market http://europa.eu/legislation_summaries/internal_market/living_and_working_in_the_internal_market/index_en.htm 20 20

Thank you for your attention! 21