Tuesday, 1 April 2008

EU TFEU: Legislating free movement for workers

With about 500 million people the European Economic Area (EEA) offers opportunities for employees and employers, if the conditions are right for labour mobility.

According to the Lisbon Treaty the European Parliament and the Council can legislate to facilitate the free movement for migrant workers, abolishing restrictions and improving job-search.


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Article 40 of the Treaty establishing the European Community (TEC) is one of those without specific amendments in the Treaty on the Functioning of the European Union (TFEU), brought about by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.

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This leads us to believe that there is cause to look up the current provision, presented in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/58:

Article 40 TEC

The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39, in particular:

(a) by ensuring close cooperation between national employment services;

(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;

(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;

(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.

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If there are no express amendments, we still have to look out for possible horizontal amendments (here 2(c), OJ 17.12.2007 C 306/41) and the renumbering of Articles in question as well as those referred to (OJ 17.12.2007 C 306/208). In addition, to get a sense of the framework, it is helpful to check the location of the provision (Tables of equivalences, OJ 17.12.2007 C 306/207-208). These exercises lead us to what should be the treaty basis when the Lisbon Treaty has entered into force:

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 40 TFEU (ToL), renumbered Article 46 TFEU

The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39 [ToL, renumbered Article 45 TFEU], in particular:

(a) by ensuring close cooperation between national employment services;

(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;

(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;

(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.

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The European Convention to change the substance in Article III-19 of the draft Treaty establishing a Constitution for Europe, but its wording was more straightforward and the legislative instruments were clearer (OJ 18.7.2007 C 169/31).

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Article III-134 of the Treaty establishing a Constitution for Europe took over the draft text (OJ 16.12.2004 C 310/59-60), but the IGC 2007 opting for ‘Constitution light’ chose not to burden the Lisbon Treaty with such minimal amendments without material bearing.

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Article 39 TFEU (ToL), renumbered Article 45 TFEU, carries much of its own weight, because the principles of free movement and non-discrimination lend themselves to direct application. Therefore there is less need for the legal base in Article 40 TFEU (ToL), renumbered Article 46 TFEU, than might appear at a first glance.

Another ground for the diminishing importance of specific rules on workers’ free movement is the growing importance of EU citizenship as the basis for individuals’ rights in the European Community (European Union) as a whole.

Because the free movement for workers is the one of the four freedoms potentially concerning the largest group of European citizens, it is somewhat disconcerting that many of the old member states raised barriers against migrant workers from ten new Central European member states in the Accession Treaties for fairly long transitional periods.

If illegal immigration from outside the European Union is seen by many as a potential source of difficulties, surely offering both employees and employers within the European Union improved legal possibilities to match offer and demand should be preferred?

One of the measures to strive for balance between supply and demand is EURES, the European Job Mobility Portal:

http://europa.eu.int/eures/home.jsp?lang=en


Ralf Grahn