Freedom of movement for workers

The free movement of workers is common with the freedom of a particular form of movement of persons within the European Union. It is one of the four fundamental freedoms of the common market and thus a core component of the binding force for all EU Member States Community law. Every citizen of the Union has therefore the right, under the same conditions to obtain employment, irrespective of his place of residence in any Member State whose nationality he does not possess and exercise as a national of that State. Freedom of movement is thus given if there is any discrimination based on nationality between workers of the Member States as regards access to employment, employment, remuneration and other conditions of employment.

Legal basis

Legal basis for the free movement of workers is Article 45 of the Treaty on the Functioning of the European Union ( TFEU). Freedom of movement is also guaranteed as a fundamental right in Article 15, paragraph 2 of the Charter of Fundamental Rights of the European Union.

In order to achieve freedom of movement, the Council of the European Union, Council Regulation (EEC ) No 1612/ 68 of 15 October 1968 on freedom of movement for workers within the Community and Regulation ( EEC) No 1408/71 on the application of systems social security for employed persons and their families moving within the Community and to adopt.

Scope

Is open to nationals of the Member States ( EU citizens ). Third-country nationals may be similarly protected by agreement or as family members derive their rights of citizens of the Union. On the free movement of workers is also an employer may rely, in the Member State of establishment workers who are nationals of another Member State as a worker.

The concept of worker within the meaning of the free movement of workers is to be interpreted broadly. Included are all persons providing services within the economy during a specific period, subject to directives services for another and get in return ( Synallagma ) a remuneration. In addition, students have also been recognized as " Prae - workers " as such in the case law of the ECJ, since they are in training for a worker activity.

The free movement of workers does not apply to employment in the public administration. The public administration is to be interpreted narrowly and includes only core areas of governmental activity. Should the government decide but EU citizens in public administration to adapt, then they must not be treated less favorably than nationals.

Warranty content

The free movement of workers guaranteed the freedom of access to employment. It is directly applicable. However, the prerequisite is a cross- border element. An employee must

• May apply to offers of employment actually;
• Allowed to move freely for this purpose in the territory of the Member States;
• To reside in a Member State, and there shall engage in any employment according to the provisions applicable to employees of that State laws and regulations;
• Allowed to remain after having been employed in the territory of a Member State.

Neither measures of the foreign Member State or of the home country should a cross-border operation be impeded. Prohibitions are not only overt discrimination by reason of nationality but also all covert forms of discrimination which, result in application of other distinguishing criteria to the same result.

As an inherent limits of the facts in the case restrictions only measures that impede access to the profession apply. Rules that define the legal framework for the exercise of the activity in the host Member State are not to measure the prohibition of restrictions ( parallel to the Keck case-law, the free movement of goods ).

Addressees

Both the Member States of the Community as well as private are to be considered as being addressed. Thus, the prohibition of discrimination applies not only to national legislation or administrative action, but also to those non-governmental entities and individuals, if the measures included a collective regulation in the labor and services. In the private sector, a distinction between a

• Collective regulation by associations ( Bosman ruling ( C-415/93 ) ) so-called intermediate powers: - In discriminatory and restrictive regulations; collective arrangements may tend to develop the same, a market for third parties occlusive effect as governmental actions; Principle of the uniform application of Union law would be violated if the same rules are tested differently in the Member States, depending on whether they are public or private origin and

• Private control ( Angonese judgment ( C-281/98 ) ): - With discriminatory regulations (eg proof of language skills ); Reasoning of the ECJ: the wording of Article 39; Synchronism with Article 12 EC and Article 141 EC; " Effet utile " and uniform application of Union law;

A rejection of this view is substantiated in the literature so that the basic liberties are addressed to the Member States; Justifications are tailored to a public authority and does not fit on Private ( see below); Objective can be also indirect effect of fundamental freedoms reach ( because of Article 10 EC follows a duty to protect the state, ie the state is bound to be private law in such a way that restrictions on fundamental freedoms are no longer possible ).

Justification of interventions

Interventions are justified then if:

• Codified justifications under Article 45 paragraph 3 exist that restrict for reasons of public order and security or public health. The provision must be interpreted strictly.
• Be developed by the ECJ case law justifications.
• Justification for overriding reasons of general interest in limiting regulations ( parallel to the Cassis de Dijon case-law on the free movement of goods ); it is debatable whether even discriminatory measures can be justified on such grounds ( predominant opinion: indirect discrimination because legitimate targets may be the reason).

These justifications are tailored to a public authority and therefore does not fit on Private; private action is the realization of individual interests, which are typically dominated economically; can justify an intervention, however, only in the public interest for reasons not of an economic nature is questionable whether a general interest must stand behind the private interest.

Barriers of justification as a " barrier barriers" theory:

• It is always the principle of proportionality. The measure must be appropriate, be required ( question of a milder agents) and reasonable.
• The binding to the binding because Article 6 TEU Union fundamental rights must be guaranteed. Even before the introduction of the law are fundamental rights, the Court looked bound consistently held the Member States to the EU fundamental rights when they are acting within the scope of Union law, including invoke derogations from fundamental freedoms (disputed ); This wide application is limited by Article 51 § 1 of the Charter of Fundamental Rights. The Member States are bound only when implementing Union law at the Union's fundamental rights.
• Binding to the EU law must be guaranteed, because in the case law of the ECJ sees the Member States rights attached to the EU. A wide application is limited by Article 51 § 1 of the Charter of Fundamental Rights by the Member States are bound only in the implementation of EU law.

Limitations: The free movement of workers after EU enlargement in 2004

For nationals of the new Member States of the EU enlargement in 2004, it was decided, with the exception of Malta and Cyprus, the possibility of limiting this EU law. The restrictions were therefore for Poland, the Czech Republic, Hungary, Slovakia, Slovenia, Estonia, Latvia and Lithuania. For these states was the so-called 2-3 -2-year formula, followed by a seven -year transition period was possible. This formula states that the "old" Member States, which had taken the option to foreclosure of their labor markets to complete, 2006, the EU Commission had to state whether they wish to pursue this policy. Was so, so you could access to the labor market for another three years are limited. In the event of a serious disturbance in the labor market, it was possible, as for example, Germany did, the access to the labor market again for another two years limit. This formula could be applied in the same form to Romania and Bulgaria, which joined the EU on 1 January 2007. In extreme cases, workers from these countries remained so until 31 December 2013, the access to the labor markets of certain countries denied.

Great Britain, Ireland and Sweden were the only EU - 15 countries that fully opened from 1 May 2004 to their labor markets. 2006, followed by Spain, Portugal, Finland and Greece. The restrictions on the free movement of workers were mostly not reciprocal, that is, that the affected central and eastern European states themselves do not restrict access to their labor markets for nationals of EU-15. Exceptions were only Hungary, Poland and Slovenia, which restricted the free movement of workers and members of EU -15 ( excluding the UK, Ireland and Sweden) to the same extent as this.

This regulation applies to all industries in Germany and Austria. Denmark has a simplified authorization procedure for the entire labor market, with Belgium, France, the Netherlands and Luxembourg allow an exception for shortage occupations. The Belgian regions have each created a list of occupations in which not enough Belgian or EU -15 workers are available. In these occupations, for example, Polish workers can be set under an accelerated approval process since 1 June 2006. In the other Member States of the Union are no restrictions.

The free movement of workers in Germany

Germany was among the EU -15 countries, which blocked off their labor market with the most. The issue was hotly debated in the run-up to EU enlargement in 2004, the fear was expressed that the German labor market a " rush " could not be grown and could get it to increased unemployment among the local population. Germany therefore limited in the context of the 2- 3-2 - formula the access to its labor market and was, together with Austria to the two countries for which was the complete freedom of movement until 1 May 2011. For workers from Romania and Bulgaria from the labor market in Germany and Austria is fully open only since 1 January 2014.