EU TFEU: Freedom of movement for workers

Not only goods, services and capital, but humans looking for work are meant to be able to move freely within the European Community (European Union).

We take a brief look at what the freedom of movement of workers looks like at treaty level, when the Treaty of Lisbon has entered into force.

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We continue our study of Part Three ‘Policies and internal actions of the Union’ in the light of the Lisbon Treaty.

Title III ‘Free movement of persons, services and capital’ of the Treaty establishing the European Community (TEC), first becomes Title III with the same name of the Treaty of Lisbon (ToL) version of the Treaty on the Functioning of the European Union (TFEU), later to be renumbered Title IV.

Chapter 1 ‘Workers’ retains its name and number throughout. (See OJ 17.12.2007 C 306/207-208.)

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Arriving at Article 39 TEC the intergovernmental conference (IGC 2007) was far from loquacious (OJ 17.12.2007 C 306/54):

FREE MOVEMENT OF WORKERS

50) In Article 39(3)(d), the word ‘implementing’ shall be deleted.

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With one word to delete, we have a certain need to find the precious rest of the provision. The latest consolidated version of the current TEU and TEC is found in OJ 29.12.2006 C 321 E/57-58:

TITLE III
FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL

CHAPTER 1
WORKERS

Article 39 TEC

1. Freedom of movement for workers shall be secured within the Community.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service.

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A consolidated Lisbon Treaty version of an Article builds upon the express amendments (here only one), possible horizontal amendments and the future renumbering. Indicating the setting of the provision, we should end up with the following result:

Part Three ‘Policies and internal actions of the Union’

Title III (renumbered Title IV) ‘Free movement of persons, services and capital’

Chapter 1 ‘Workers’

Article 39 TFEU (ToL), renumbered Article 45 TFEU

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service.

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In Article III-18 of the draft Treaty establishing a Constitution for Europe nothing changed the substance of the provision, but some readers may prefer the plain language of the European Convention in a few details while others may miss the formula ‘freedom of movement for workers’ (OJ 18.7.2003 C 169/31):

SECTION 2
Free movement of persons and services

Subsection 1
Workers

Article III-18 Draft Constitution

1. Workers shall have the right to move freely within the Union.

2. Any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment shall be prohibited.

3. Workers shall have the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in European regulations adopted by the Commission.

4. This Article shall not apply to employment in the public service.

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The corresponding Article III-133 of the Treaty establishing a Constitution for Europe repeated the text of the draft word for word, so the Lisbon Treaty can be said to have reverted to the TEC text, as far as there are any differences, and none of them material.

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The reader who wants to begin exploring the right to move freely can start from the Commission’s pages on Employment and Social Affairs, Free Movement of Workers ‘Free Movement of Workers and the Principle of Equal Treatment’ and the links offered:

http://ec.europa.eu/employment_social/free_movement/index_en.htm


Ralf Grahn