Free Movement of Workers
The European Union Treaty guarantees the right of workers to move between member states of the European Union to seek employment. They must not be subjected to any discrimination based on nationality as regards employment, remuneration or conditions of employment.
There are limited grounds based on public policy, security and health in which member states may restrict the freedom. The rights do not apply to employment in the public service.
The rights in the treaty are supplemented by rights in EU legislation. These supplemental rights permit workers and their family to reside freely within the EU states. There are regulations in relation to social insurance which are designed to ensure that workers do not lose their social insurance entitlements and benefits when or by exercise.
The EU rights apply directly and override national requirements which are inconsistent with them. National requirements contrary to the rights may be declared void by the courts.
The rights of migrant workers from the ten Central and Eastern European states which joined the EU in 2004 and 2007 were limited in states other than Britain and Ireland until transitional periods expired. Certain states including the UK and Ireland opened their borders immediately to migrant workers from those countries.
Nature of Rights
The rights apply to employees. They apply to workers exercising employment of an economic nature. They complement the separate provisions providing for freedom to provide services and establish businesses.
The right entails the right to enter the host state in search of work. There is no fixed time limit but six months would generally be considered reasonable. Temporary unemployment does not change the status of the worker.
The rights include the right for the workers’ family to come to the host member state. It applies once the person is employed. The spouse is entitled to come and reside with the employee regardless of nationality. The spouse may take up and pursue activities as an employed or self-employed person under same conditions, as a national of the host state.
Children of the employee are entitled to enter the host state and take up education, apprenticeship or vocation courses under the same conditions as nationals of the host state. The child of an employee exercising the right may continue in education in the host state after the worker has returned to the home state.
Direct or indirect discrimination on the basis of nationality is prohibited. This includes discrimination and distinguishing criteria other than nationality which in practice have a discriminatory effect or result. Therefore, where an apparently neutral rule in effect adversely affect migrant workers as opposed to nationals of the host state, then they may be deemed indirectly discriminatory and invalid.
Rules which have the effect of constituting an obstacle to freedom of movement which cannot be objectively justified are also void. The famous Bosman Ruling invalidated a soccer transfer rule the basis of the decision was that the rules themselves constituted an obstacle to the movement of workers within the EU. There was no element of discrimination about the rules as they applied equally to national and non-national footballers.
Discrimination in relation to an employment contract is prohibited. Any provisions which limit the right to seek and pursue employment or impose conditions which are discriminatory is void.
Requirements may be imposed in relation to linguistic knowledge. This requirement was upheld in relation to a case concerning Ireland ’s requirement for Irish language competence in a teaching position.
EU legislation supplementing the treaty right grants further guarantees to migrant workers.
Migrant workers are entitled to the same assistance in seeking employment as nationals. Recruitment must not be based on medical or vocational criteria which are discriminatory.
Migrant workers must enjoy the same social and tax advantages. They have the right to the same housing benefits.
Social advantages are wider than social security benefits. This covers the full range of benefits and advantages that apply to an employed national.
EU migrants the same rights to join the same trade unions. The same applies to professional associations and bodies. Migrant employees must be entitled to membership on the same terms as nationals.
Migrant workers are entitled to access to vocational schools and re-training centres under the same conditions as nationals. If employment is ancillary to the studies, migrant workers are not entitled to the benefit of assistance for training and studies unless there is a real and effective degree of connection between them and the employment is not ancillary. If an employee becomes voluntarily unemployed to undertake a course of study the benefits may be denied.
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