Although they have never been considered workers in the sense of Article 45, since they do not satisfy the criteria of worker mentioned in Section 2. For instance, Article 5 provides that a national of a Member State who seeks employment in the territory of another Member State shall receive the same assistance there as that afforded by the employment offices to their own nationals seeking employment. This provision had an impact on their access to so-called jobseekers allowances.
The CJEU ruled in Collins that in view of the establishment of citizenship of the EU, it was no longer possible to exclude from the scope of Article 45 of the TFEU a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State. In Alimanovic , the Court departed from this approach and ruled that when a jobseeker allowance both facilitates access to the labour market and provides minimum means of subsistence, it constitutes social assistance, from which jobseekers can be disqualified Article 24 2 of the Citizenship Directive.
The right of free movement and equal treatment of EU citizens has been subject to important developments. They are evidence of an important step in favour of social citizenship, although they are not as unconditional as those of workers. Yet, the fear of benefit tourism seriously influenced the interpretation of the provisions of the Citizenship Directive by the CJEU and led to important restrictions of their rights and legal uncertainties.
Although the existence of broad political support for denying social assistance to persons in an early stage of their stay in a host State is difficult to deny, this cannot be the sole basis for defining the legal position of EU citizens. Indeed, what is the meaning of the right to free movement of economically inactive citizen where because of disparities in economic wealth between Member States, EU citizens have insufficient income or capital in their State of origin to spend some time abroad?
Secondly, it can be said that the legal position of economically inactive persons has become quite unsure. A claim for a subsistence benefit can mean that one has no longer a legal right to stay; this can also mean that these persons do not acquire a right to permanent stay after five years, since they cannot prove that they fulfilled the condition of lawful residence in this first-five year period.
It is not clear yet whether the nuance in the Grzelczyk judgment a person having provided for his own needs during three years encountering temporary financial problems could not be denied social assistance still applies. After all, the judgments discussed above, i. Brey and Dano , concern persons in an early stage of their stay or who seemed to be permanently unable to earn their own living and are thus in a different position than Mr. However, the CJEU uses quite absolute words in denying the right of equal treatment in Dano and Commission v the UK , so a general exclusion from the right of equal treatment until a permanent right to stay is reached is very well possible.
Finally, the issue is not so much whether Ms. Dano has been correctly denied the right to social assistance, but more in general, the legal uncertainty for EU citizens. It is therefore time to rethink their right of equal treatment. This is not an easy task because of the considerable differences between the Member States. Although one might be tempted to make the State of origin more responsible for the subsistence income of their citizens moving abroad, this raises huge problems since several countries have no such system or have only very low benefits.
After all, also for persons who worked in the host State and then become unemployed the responsibility lies with that country. Yet, in view of the large differences between social systems of Member States, equal treatment of economically inactive persons upon entry into the host country creates financial and social cohesion problems.
A complete denial from equal treatment for five years if a person has no subsistence means is, on the other hand, a very radical approach and a barrier to their free movement rights. Therefore, the real link approach developed by the CJEU in its earlier case law, is a good alternative: it allows for nuanced outcomes and fits well in a policy to prevent benefit tourism.
The Grzelczyk case law was, for instance, elaborated in Dutch policy rules so that EU citizens and their families claiming social assistance benefit or lodging are less easily evicted the longer they have resided in the Netherlands. Making use of night shelters was not considered an unreasonable burden if used less than eight nights in the first two years of residence, less than 16 nights in the third year, less than 32 nights in the fourth year and less than 64 nights in the fifth year.
Generally, unless personal circumstances oppose so, a request for social assistance payment in the first two years of residence means that one does no longer meet the conditions under which the permission to stay in the Netherlands was granted. From the third year of residence onwards, it is possible to apply for social assistance without being expelled. No expulsion measures are taken in case of the following claims: in the third year during less than two months for less than 50 per cent of the subsistence benefits norm or during less than three months for a more supplementary assistance for an amount which is up to 50 per cent of the subsistence benefits norm , in the fourth year less than four months respective six months and in the fifth year less than six months respective nine months.
Social assistance during less than 15 months in a period of three years can be received without being expelled. The third form of movement is that of persons who are sent by their employers to work for them temporarily in another Member State. They thus do not benefit from the principle of equal treatment. As we will see below, this makes competition on the basis of wages possible potentially leading to social dumping.
Indeed, employers can rely on the rules of employment and social protection of the sending State and are not bound by the equal treatment principle of Article Posting of workers is a complex phenomenon, which has many faces. Yet, for the purpose of this article, we have to keep in mind that the problems linked with posting take place especially in specific sectors of the economy. These are sectors where work is mobile in nature, such as the construction and transport sectors. Yet, in specific sectors and areas posted workers have in practice substituted considerable numbers of national workers.
In this section, we will first look at the legal development in the initial period, before the Posted Workers Directive of was adopted Section 4. We will assess whether the recent revision of the Directive makes a change in the balance between social and economic interests in view of equal treatment Section 4. The debate on which rules should be applicable to posted workers started in the s.
It must be kept in mind that this case concerned the issue of a fine being imposed on the employer established in Portugal for not having a labour permit for employees posted to France.
The question of equal treatment of the workers was not at issue here. Yet, it follows from this judgment that EU law does not require posted workers to be treated equally with local workers. In terms of social citizenship, they do not form part of the community where they temporarily work. Thus, like in the citizenship cases discussed in the previous section, there is no sufficient link to the host country to trigger the application of equal treatment.
In contrast, the undertakings posting the workers were protected against unjustified restrictions on their freedom to provide cross-border services. Thus, the criterion of competition between undertakings of the Member States seems to be decisive to regulate the legal position of the workers. Although this did not impose equal treatment in general, it gave Member States the freedom to treat posted workers in the same way as national workers and thus outlaw competition on the basis of labour law standards.
Yet, in later case law, the Court gave preference to the possibility to compete and ruled that imposing national labour law can restrict the freedom to provide services and thus needed to be justified.
The objective of social protection of workers could, in principle, legitimately justify the application of the legislation of the host State. However, there was uncertainty as to the extent of this protection, as some host States applied all their labour law rules to posted workers. The question then arose when competition should prevail and when labour law rules legitimately protected workers. In order to find a compromise on this issue, in the EC legislature adopted — after long deliberations — a Directive regulating the issue of posting of workers.
Thus, the Directive specified that the posted workers are subject to a nucleus of mandatory rules for minimum protection of the host State. A crucial part of this is Article 3 1 c that required and allowed imposing the minimum rates of pay of the State where the work is performed. It followed that the economic freedoms such as the free provision of services shall be balanced against the social objectives of the EU including a high level of employment and adequate social protection.
Yet, the CJEU ruled that the provisions of the Directive on Posting of Workers should not only work as a floor for social protection of workers, but also as a ceiling. In other words, the minimum must be imposed, but not more than the minimum. A point of discussion was Article 3 7 that allows Member States to impose more favourable terms and conditions than those mentioned in Article 3 1. Could this mean that higher rates of pay than the minimum could be required? The Court decided in favour of the service provider that the host Member State can only impose the obligation to pay minimum wages to posted workers.
This interpretation of the Directive and other aspects of the ruling led to massive criticism of the CJEU for favouring economic interests to the detriment of the social protection of posted workers and the workers of the host State. It already followed from the Posted Workers Directive that no equal treatment was required, but the case law of the Court added that nothing more than the minimum could be imposed. The way to equal treatment seemed completely barred.
Equal treatment with the workers and protection against unfair competition on the basis of wages had to give way to the economic dimension, i. Thus, the balance tipped in favour of the economic interests. They lift the ceiling of social protection flowing from Laval by allowing a broader interpretation of the concept of minimum pay.
In Elektrobudowa , it was permitted to include all elements of the wage structure pursuant to the collective agreement, provided that they were clear and accessible to the service provider.
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In RegioPost the Court allowed the local contracting authority to impose the wage provided for in the law of the German land. As we saw in the preceding section, the market paradigm based on wage competition prevailed to a great extent in the law on posting of workers. In there seemed to be an important change, when the Directive on Posting of Workers was revised to introduce the principle of equal remuneration. We will assess its further implications in terms of shift of values underpinning the internal market. Is the revised directive a step towards a more social market economy, where social protection of workers prevails over competition between undertakings?
They intended to put the wage competition, which followed from the Directive on the agenda. They argued that wage competition undermines sectors of the economies of countries with higher wages and creates the risk of social dumping, i. In fact, this effect was the result of the differences between the old and the new Member States, or between the well-developed economies and the economies still in development.
The substantial objections to the Directive seemed, however, to have been the real reason for this procedure. The revised Directive has the Treaty provision on free movement of services as a legal basis, although it also refers to social provisions such as Article 3 of the TFEU with its focus on a social market economy and Article 9 of the TFEU referring inter alia to a high level of employment and social protection.
The revised Directive no longer mentions minimum rates of pay, but remuneration so no longer minimum remuneration as the core of labour law of the host State to be imposed. For the purpose of the Directive, remuneration means all the elements of remuneration rendered mandatory by national law, regulation or administrative provision, collective agreements or arbitration awards, which have been declared universally applicable.
In the absence of the latter systems, other collective agreements or arbitration awards can be used. Such mechanisms were already mentioned in the previous Directive Article 3 8 second subparagraph. Posted workers shall receive the same wage as national workers in so far as this is laid down in the instruments mentioned above. This is a very interesting development.
One might wonder whether it is an effect of the concept of the social market economy, that requires a more equal balancing between potentially conflicting values such as the economic and the social interests. Or is it only because economic and political interests in the richer countries became so heavy that they switched the balance to the social?
Both may be true. Firstly, the free movement of services is now more firmly connected to the principle of equal treatment. Equal treatment with local workers in respect of wages protects not only the posted workers, but also the local labour market from unfair competition. This paradigm shift has been challenged by Hungary and Poland, which have brought the Directive before the CJEU for infringing the provisions on free movement of services, which form the legal basis of the Directive. Secondly, the adoption of the revised Directive shows that where there is a political will, there is a way.
Status quo, which risks being the favoured position in a Europe of 28 Member States, can thus be overcome. Therefore, the issue of social dumping in connection to posting is a complex and sensitive political issue. Likewise, the sending employers may claim that they are not in the same position as employers in the host State as they incur extra cost such as those linked to accommodation and travel and therefore should not be subject to the same rules.
It will be interesting to see how the CJEU will solve the issue and argue for its findings. We expect that the Court will follow the adopted Directive. It has traditionally granted a broad discretion to the EU legislature, and has not been as strict as it is in respect of national measures that restrict the Treaty freedoms. Furthermore, the reference in consideration 3 of the Preamble to Article 3 of the TEU requiring the promotion of a highly competitive social market economy aiming at full employment and social progress and a high level of protection is a powerful counterargument for a rebalancing of the social and economic interests in favour of workers.
Finally, reference to the horizontal clause of Article 9 of the TFEU requiring that the EU shall take into account requirements linked to the promotion of a high level of employment and the guarantee of adequate social protection when defining and implementing its policies and activities is another strong argument restricting possibilities of competition on wages and requiring equal pay for equal work.
The latter principle constitutes one of the social pillars endorsed by the EU to redirect the EMU and the EU in a more social direction. What can we conclude from these analyses of the free movement of workers, persons and posted workers in terms of balance between the economic and social? Free movement of workers has remained a pillar of the EU.
European Court of Justice confirms nonviolation of free movement of workers
It has a very important economic dimension, and exactly because of this dimension it has been included in the Treaty since Article 45 of the TFEU itself requires equal treatment of migrant workers with national workers in order to make free movement attractive, but also to avoid wage competition and social dumping.
In this way, the economic dimension has also social effects. The economic dimension of this provision was an important reason for the CJEU to give the term worker a broad dimension. Yet, there was also a strong social underpinning, as a broad interpretation of the term worker meant that Member States were not allowed to restrict free movement and equal treatment by excluding groups of persons performing work in a dependent position the Levin judgment. Yet, we saw that some tensions exist at national level threatening the right to equal treatment of workers.
It is therefore recommended that the EU legislature takes its responsibility and reinforces the right of equal treatment by defining where and for whom it exists. Free movement of EU citizens is a more recent phenomenon and is subject to more restrictions than the free movement of workers. This has been the case from the beginning, as one important requirement has always been that the EU citizen should not become an unreasonable burden for the host State.
In addition, it developed the interesting approach that citizens can be required to demonstrate a link with the host society for accessing some social rights. Such approach constitutes a good middle way between exclusion on basis of nationality and having to admit everyone. This approach requires, however, an extensive investigation by the public administration of each case and raises concerns of legal uncertainty. Yet, it is still uncertain whether this case law is already giving the full picture, or that it will be further refined.
Can the very claim of social assistance in all cases so also after a couple of years without claims imply that one has become an unreasonable burden to the system and therefore no longer has a right to stay pursuant to the Directive? And what is the position of those who do not make a claim, but cannot show that they have sufficient resources? In any event, this case law leaves it unclear to what extent equal treatment still exists in respect of economically inactive EU citizens.
However, the CJEU added an important restriction: it assimilated non-contributory benefits with social assistance benefits, and thus introduced different interpretations of this type of benefit, depending on the piece of legislation involved. As mentioned above, the earlier requirement of showing a certain degree of integration in the host State was attractive since it found a way between simply excluding all EU citizens on ground of nationality and admitting every citizen to the welfare system from the first day of stay. In contrast, the Dano approach is an absolute one of excluding citizens who claim social assistance and is not further explained.
The same outcome could have been reached by means of the link approach or by simply saying that a person not seeking work is not entitled to the non-contributory unemployment benefit that was claimed by Ms. Dano seems therefore to be more inspired by the fear of welfare tourism expressed by some Member States than by consistent criteria.
Equal treatment of economically inactive persons has thus radically shrunk, in any case during the first five years of their stay in the host State. When EU citizens become workers, however, they are treated in the same way as nationals.
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This is an essential difference. It is clear that there are no economic interests to ensure equal treatment of burdensome inactive EU citizens and that makes their position vulnerable when economic arguments such as the possible costs of their stay are put forward. Still, also free movement of citizens deserves protection and we have made suggestions for the legislature to elaborate the link approach in order to ensure, in any case, equal treatment gradually. Conflicting economic and social interests could be seen in particular in the area of posting, where the social protection of workers in the host State and that of the posted workers had to give in to the economic rights of the services providers.
Yet, unequal treatment in the host State can have a negative effect on public confidence in the EU and on social cohesion in the host State. Although the development towards equal treatment in the revised Posted Workers Directive can be seen as pushing the balance in favour of the social side, it must be recalled that the motives for this shift are also of an economic nature. They are not only economic, since the promotors of this shift also had to do with pressures from workers, unrest and lack of trust in governance.
However, these arguments go hand in hand with economic interests, such as losses in competition in the high wage countries and extra costs for social funds, and that explains the pressure to revise the Directive. A remaining problem is that of the service providers and their workers. They may lose their markets in the more affluent countries. This problem cannot be solved in the latter countries, but this has to be addressed in the countries of establishment.
EU funds could help to improve the labour on offer and to educate workers, so that competition no longer has to be on wage costs, but can be on particular expertise. This contributes more to a coherent social market economy in the EU than the previous wage competition.
Finally, there are parallels between the issues of benefit tourism and social dumping. Combatting social dumping through posting is combatting unfair competition in order to protect jobs for domestic workers. Combatting welfare tourism is avoiding unreasonable expenses for the State budget, again for the more affluent countries.
Both are meant to protect the economy and maintain social cohesion, in any case of the more developed countries, so that jobs and social benefits are not threatened by outsiders. Such actions are largely influenced by the disparities between the Member States and this should not be the end of the development. We have suggested some ways to respond to the various problems; some of these are based on the principle of equal treatment.
Yet, as long as the differences between countries are still as important as they currently are, it is more sensible to make adjustments to the present rules as suggested in the preceding sections than radically require equal treatment in all situations. Still, equal treatment should be the final objective and make it possible to come to a better reconciliation of the economic and social. For Denmark, see D. Martinsen and G. Martinsen, G. Pons Rotger, J. In respect of social dumping, see the references mentioned in footnotes 53 and See also S.
Seubert et al. Seeleib-Kaiser eds. See also Harris, note See also H. Bruzelius et al. Heeger, Accessing social rights for EU Citizens The receiving countries are mainly Germany, France and Belgium. The average of posting is approximately four months, which is most likely due to tax rules. Member States shall publish in the single official national website the constituent elements of remuneration in accordance with point c.
Jacqueson, C. Utrecht Law Review , 15 2 , pp. Jacqueson C, Pennings F. Utrecht Law Review. Utrecht Law Review , 15 2 , 64— Jacqueson, Catherine, and Frans Pennings. Utrecht Law Review 15 2 : 64— Utrecht Law Review 15, no. Utrecht Law Review , vol. Start Submission. Frans Pennings X close. Abstract Free movement of persons is a fundamental freedom and equal treatment its necessary corollary. How to Cite: Jacqueson, C. Published on 04 Sep Peer Reviewed. CC BY 3. Introduction Free movement of persons is a fundamental freedom of the EU.
Free movement of workers: a fundamental freedom under pressure The right of free movement of workers has been the cornerstone of the EU since the creation of the EEC in Possible avenues for reconciliation of the social and the economic How can the concerns of the Member States possibly be reconciled with the free movement of workers? This is coupled with an examination of the uses or misuses of data, information and social science knowledge in the debates on the reliance by non-citizens on social benefits.
The book concludes with a set of recommendations addressed to EU policy-makers. How free is free movement? The majority of EU nationals moving to another EU country do so to work. At the moment of writing nine Member States still impose labour market restrictions on the right of Bulgarian and Romanian nationals to work on their territories: Austria, Germany, Belgium, France, Luxembourg, Malta, the Netherlands, Spain and the United Kingdom.
Benefits tourism: A real danger for the EU or is it just hype? This dossier presents the Romanian and Bulgarian responses to the fears brought forward by the four Western Governments. Equally important is the section dedicated to the Parliamentary debate launched on this issue. This research analyses the labour migration trends in two origin countries Romania and Bulgaria and four destination countries UK, Spain, Italy, Germany.
It contains relevant statistics about level of education of Bulgarian and Romanian nationals residing abroad, the sectors in which they are employed and examines the push and pull factors of this type of migration. The Ambassador regrets the UK media and political approach towards migration from Bulgaria which is likely to emerge with the removal of labour market restrictions for Bulgarian citizens. However, he expects the UK Government to live up to its obligations and eliminate these restrictions by the end of The findings of this study reveal that there is limited evidence on the impact migrants have on the welfare system.
However, the authors underline that the majority of social benefits claims are child benefits.
Freedom of movement for workers | Labour Law | Labour | Disabilities | Sozialministerium
Migration Watch estimates that around 50, Romanians and Bulgarians per year are likely to migrate towards the UK during the next five years. The report also stresses the bad working conditions East European are ready to accept and the preference UK employers will grant these new migrants. This standard note interprets the forecasts made by Migration Watch and highlights its limits.
Consequently, as EU migrant workers contribute to the social welfare system of the host country, they should benefit from the same social advantages as national workers. A tougher regime can nevertheless be imposed on job seekers as an intermediate category between workers and economically inactive persons. Economically inactive persons benefit from even fewer social assistance rights. Freedom to move and live in Europe: a guide to your rights as an EU citizen hyperlink returns an error.
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