Free movement of workers

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The free movement of workers is a core component of the Union law that is binding for all EU member states . It provides together with the freedom of a particular form of movement of persons . Every citizen of the Union has hereafter the opportunity, irrespective of his place of residence in any Member State whose nationality to take it does not have under the same conditions of employment and to practice as a national of that State. There is therefore freedom of movement if there is no difference in treatment, based on nationality, of workers in the Member States with regard to access to employment, employment, remuneration and other working conditions.

Legal basis

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

To achieve freedom of movement has Council of the European Union , the Regulation (EEC) No. 1612/68, since 2011 replaced by Regulation (EU) no. 492/2011 of 5 April 2011, and Regulation (EEC) No. 1408 / 71 , replaced by Regulation (EC) No. 883/2004 since 2010.

scope of application

The nationals of the Member States ( Union citizens ) are entitled . Third-country nationals can be similarly protected by treaties or, as family members, derive their rights from citizens of the Union. An employer who wishes to employ nationals of another Member State as employees in the Member State in which he is established can also rely on the free movement of workers.

The concept of the employee in the sense of the free movement of workers is to be interpreted broadly. It covers all people who, in economic life, provide services for another person in accordance with instructions during a certain period of time and receive remuneration in return ( synallagma ). However, students are not recognized as employees.

The free movement of workers does not apply to employment in public administration. Public administration is to be interpreted narrowly and only includes core areas of sovereign activity. Should the state decide to employ EU citizens in the public administration, then they must not be treated worse than its own citizens.

Warranty content

The free movement of workers guarantees free access to employment. It is immediately applicable. However, a cross-border element is required. An employee must

  • may apply for positions actually offered;
  • to move freely within the territory of the Member States for this purpose;
  • reside in a member state and are allowed to work there in accordance with the legal and administrative regulations applicable to workers in that state;
  • may remain on the territory of a Member State after employment has ended.

Cross-border activities may not be hindered by measures taken by the foreign member state or by the home state. Not only open discrimination based on nationality is prohibited, but also all disguised forms of discrimination which actually lead to the same result when other distinguishing criteria are used.

Only measures that hinder access to the profession are considered to be inherent barriers to the facts of the case. Regulations that define the legal framework for the exercise of the activity in the host Member State cannot be measured against the prohibition of restrictions (parallel to the Keck case law on the free movement of goods ).

Norm addressees

Both the member states of the Union and private individuals are to be regarded as addressees of norms. The prohibition of discrimination therefore not only applies to state legislative or administrative action, but also to measures by non-state bodies and private individuals if the measures contain collective regulation in the field of work and services. In the private sector, one differentiates between one

  • collective regulation by associations ( Bosman decision (C-415/93)) so-called intermediate powers:
    • - in the case of discriminatory and restrictive regulations; Collective regulations can tend to have the same effect, which closes a market for third parties, as state measures; The principle of uniform applicability of Union law would be violated if the same provisions were examined differently in the Member States, depending on whether they are of public or private origin
  • a private settlement ( Angonese judgment (C-281/98)):
    • - in the case of discriminatory regulations (e.g. proof of language skills); Justification of the ECJ: wording of Art. 39; Synchronization with Art. 12 EC and Art. 141 EC; “ Effet utile ” and uniform applicability of Union law;

A rejection of this view is justified in the relevant literature on the grounds that the fundamental freedoms are directed at the Member States; Reasons for justification are tailored to sovereigns and do not suit private individuals (see below); The goal can also be achieved through indirect third-party effects of the fundamental freedoms (because Art. 10 EC requires the state to protect itself, i.e. the state is obliged to shape its private law in such a way that restrictions on fundamental freedoms are no longer possible).

Justification of interventions

Interventions are to be justified if:

  • There are codified grounds for justification according to Art. 45 Para. 3, which concern restrictions on grounds of public order and security or health. The regulation is to be interpreted narrowly.
  • There are justifications developed by the ECJ case law.
  • Justification for imperative reasons of the general interest in the case of restrictive regulations (parallel to the Cassis de Dijon case law on the free movement of goods ); It is controversial whether discriminatory measures can also be justified on such grounds (prevailing opinion: indirect discrimination as well, because legitimate goals can be the reason).

These grounds of justification are tailored to sovereigns and therefore do not fit private individuals; private action serves to realize individual interests that are typically economically shaped; However, an interference can only be justified for reasons of a non-economic nature that are in the general interest. The question is whether a general interest must also be behind the private interest.

Limits of justification as so-called "barrier-barrier" theory:

  • The principle of proportionality always applies . The measure must be suitable, necessary (ask for a milder means) and reasonable.
  • The binding to the Union fundamental rights binding under Article 6 TEU must also be guaranteed. Even before the introduction of the legally binding nature of fundamental rights, the European Court of Justice consistently held that the Member States were bound by Union fundamental rights if they were active within the scope of Union law, including a. invoke exemptions from fundamental freedoms (controversial); this broad application is restricted by Art. 51 para. 1 of the Charter of Fundamental Rights . The Member States are only bound by Union fundamental rights when they are implementing Union law.
  • Binding to EU law must be guaranteed, because the ECJ has consistently ruled that the member states are bound by EU law. Wide application is restricted by Article 51, Paragraph 1 of the Charter of Fundamental Rights , in that the member states are only bound when implementing EU law.

Restrictions: Free movement of workers after the EU's eastward expansion in 2004

For members of the new member states of the 2004 EU enlargement , with the exception of Malta and Cyprus, the possibility of restricting this EU law was decided. The restrictions therefore applied to Poland , the Czech Republic , Hungary , Slovakia , Slovenia , Estonia , Latvia and Lithuania . For these states, the so-called 2-3-2 year formula applied, according to which a seven-year transition period was possible. This formula says that the "old" member states, which had taken advantage of the opportunity to foreclose their labor markets, had to inform the EU Commission in 2006 whether they wanted to pursue this policy. If so, access to the labor market could be restricted for a further three years. In the event of a serious disruption in the labor market, it was possible, as Germany did, for example, to restrict access to the labor market for another two years. This formula could be applied in the same form to Romania and Bulgaria , which joined the EU on January 1, 2007. In extreme cases, workers from these countries were denied access to the labor markets of certain countries until December 31, 2013.

Great Britain , Ireland and Sweden were the only EU-15 countries that opened their labor markets completely from May 1, 2004. Spain , Portugal , Finland and Greece followed in 2006 . The restrictions on the free movement of workers were largely non-reciprocal; This means that the Central and Eastern European states concerned did not restrict access to their labor markets for EU-15 nationals. The only exceptions to this were Hungary, Poland and Slovenia, which restricted the free movement of workers for members of the EU-15 (excluding Great Britain, Ireland and Sweden) to the same extent as they did.

This regulation applies to all industries in Germany and Austria . Denmark has a simplified admission procedure for the entire labor market, with Belgium , France , the Netherlands and Luxembourg allowing an exception for shortage occupations . The Belgian regions have each drawn up a list of occupations in which there are not enough Belgian and EU-15 workers. Since June 1, 2006, for example, Polish workers can be hired in these professions following an accelerated admission procedure. There are no restrictions in the remaining member states of the Union.

When Bulgaria and Romania were expanded on January 1, 2007, the citizens of these countries received full freedom of movement on January 1, 2014.

Compared to nationals of the 28th and so far youngest (as of 2018) EU member state Croatia, Germany restricted the free movement of workers (and the freedom to provide services) for two years until the end of June 2015.

The free movement of workers in Germany

Germany was one of the EU-15 countries that sealed off their labor market the most. The topic was controversially discussed in the run-up to the EU enlargement in 2004 , whereby the fear was expressed that the German labor market might not be able to cope with a "rush" and that there could be increased unemployment among the local population. According to this, Germany restricted access to its labor market under the 2-3-2 formula and, together with Austria, was one of the two countries for which full freedom of movement did not apply until May 1, 2011. For employees from Romania and Bulgaria , the labor market in Germany and Austria has only been fully open since January 1, 2014.

Web links

Wiktionary: Free movement of workers  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Treaty on the Functioning of the European Union (TFEU) (PDF)
  2. ↑ This provision was Article 39 of the Treaty establishing the European Community (EC Treaty) until November 30, 2009 according to the numbering introduced by the Maastricht Treaty, and Article 48 of the EC Treaty according to the numbering that was previously in force until October 30, 1993
  3. ↑ Charter of Fundamental Rights of the European Union (PDF)
  4. ↑ European Court of Justice, Case C-350/96, judgment of May 7, 1998, Clean Car Autoservice GesmbH v Provincial Governor of Vienna
  5. ↑ European Court of Justice, Rs. 66/85, "Lawrie-Blum", Collection 1986, (p. 2121)
  6. ↑ ECJ, Slg 2008, I 5939, Rn. 32 ff.
  7. ↑ Art. 45 para. 4 TFEU
  8. ↑ ECJ of January 27, 2000. - Volker Graf v Filzmoser Maschinenbau GmbH, case C 190/98
  9. ↑ Bosman decision of the ECJ of December 15, 1995, Case C-415/93
  10. ↑ ECJ of June 6, 2000, Roman Angonese v Cassa di Risparmio di Bolzano SpA, Case C-281/98
  11. ↑ see Brussels City ( Memento of August 28, 2006 in the Internet Archive ) (PDF file)
  12. ↑ see Flanders (PDF file)
  13. ↑ Immigration from Romania and Bulgaria: Western Europe's fear of the onslaught. In: Spiegel online. 2013, accessed September 6, 2019 .
  14. ↑ Publication by the Federal Government's Press and Information Office 2015
  15. ↑ Welt.de: Federal Agency raves about the influx from Eastern Europe