EUROPEAN REPORT on the Free Movement of Workers in Europe in 2012-2013 Rapporteurs: Prof. Kees Groenendijk, Prof. Elspeth Guild, Dr. Ryszard Cholewinski, Dr. Helen Oosterom-Staples, Dr. Paul Minderhoud, Sandra Mantu and Bjarney Fridriksdottir February 2014 (includes Member States' comments in annex) 1 CONTENTS Executive Summary 3 General introduction 5 Chapter I The Worker: Entry, Residence, Departure and Remedies 13 Chapter II Members of a Worker’s Family 38 Chapter III Access to Employment: Private sector and Public sector 69 Chapter IV Equality of Treatment on the Basis of Nationality 79 Chapter V Other Obstacles to Free Movement 101 Chapter VI Specific Issues 103 Chapter VII Application of Transitional Measures 117 Chapter VIII Miscellaneous 126 2 EXECUTIVE SUMMARY FREE MOVEMENT OF WORKERS 2012-2013 2013 is an important year in the history of EU free movement of workers as it marks the end of transitional restrictions on free movement of workers for nationals of Bulgaria and Romania. This has impacts in only nine Member States which are still applying restrictions.1 Equally, 2013 is an enlargement year with Croatia joining the EU on 1 July. Thirteen Member States are applying transitional restrictions on Croatian workers.2 Although there are substantial differences in unemployment rates between the Member States as a result of the economic situation, these unemployment rates do not appear to be a determining factor in the application of transitional restrictions on Croatian workers. For instance, Ireland and Portugal where there are relatively high unemployment levels have not applied restrictions. Although the interior ministries of four Member States (Austria, Germany, the Nether- lands and the UK) expressed concern about their social costs in respect of EU workers from other Member States in a letter to the Presidency, none of the ministries followed up these concerns with evidence of a problem, when so requested by the Commission. At the same time a number of Member States (e.g. the Czech Republic and Sweden) have taken steps or are considering steps to improve national legislation implementing Directive 2004/38. National rules and practice around the issue of residence certificates, residence cards for third country national family members, permanent residence certificates and cards remains less than satisfactory. While the declaratory effect of such documents is increasingly clearly stated in national law (see for instance Finland), what have been particularly simple proce- dures such as the German automatic issue of documents when an EU citizen registers as a resident have been discontinued. Similarly, a new Spanish requirement that EU citizens reg- ister in the Central Register of Foreigners (rather than the register of citizens) in order to be able to access health care and social benefits is indicative of a similar trend towards more paperwork. Legal remedies and in particular judicial remedies in a number of Member States for EU citizens against whom a host state has taken action are still not fully compliant with the Di- rective. The entitlement of EU citizens to equal treatment with nationals of a state appears to be a victim of austerity in a number of Member States and in a variety of ways. Nowhere is this more evident than in the reluctance of the local authorities in a number of Member States to provide equal treatment in access to housing including social housing to EU workers. Simi- larly, equal access to employment in the public service has not advanced over the years of austerity notwithstanding efforts by the Commission. The treatment of third country national family members of EU workers also reveals shortcomings in a number of Member States where they are treated as ‘ordinary’ third coun- try nationals under the immigration laws and rules rather than privileged persons under the Directive and Regulation. Further, there are increasing reports of invasive practices by 1 Austria, Belgium, France, Germany, Luxembourg, Malta, the Netherlands, Spain (Romanians only) and the UK. 2 Austria, Belgium, Cyprus, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Spain, Slovenia and the UK. 3 Member State authorities to determine the genuineness of marriages often causing distress to families. EU citizens of Roma ethnicity are still having difficulties in a number of Member States when exercising their free movement rights as workers. Discrimination on the basis of eth- nicity seems to exaggerate the negative responses of the authorities of some Member States towards applications for documents and attempts to access equal treatment. In a number of Member States, Ombudsmen are taking an increasingly active role in as- sisting EU workers and their families to establish their entitlements to rights. But the in- crease in the number of references to the CJEU on workers’ rights may be both positive and negative - to some extent it indicates an increasing awareness in the judiciaries of the Mem- ber States of the availability of assistance with EU cases, but it may also indicate an increase in the number of problems EU workers are encountering. 4 GENERAL INTRODUCTION 1. POLITICAL AND ECONOMIC DEVELOPMENTS This report covers the main developments on free movement of workers issues between 1 July 2012 and 1 July 2013. It also includes information on the situation in the new Member State Croatia, which joined the European Union as of 1 July 2013. Many nationals of the accession Member States have used the freedom of movement they acquired after 2004 or 2007. According to Eurostat, almost four million Polish and Ro- manian nationals had registered residence in another Member State in 2011. That is about the same number as the total of nationals of Italy, Portugal, the UK and Germany living in other Member States.1 The latter migration occurred over decades; the first one took place within less than a decade. This has created feelings of loss of control, fears for abuse of the social system (the so-called ‚benefits tourism‘) and the apparent need for some politicians to make strong statements about nationals from other Member States and the need to be strict and regain control. In most Member States free movement of Union citizens is perceived as an important asset of the EU and not as a political problem or a major issue for debate in the press or other media. However, in some Member States the political reaction to the economic crisis is ex- plicitly focussed on nationals of some specific other Member States. This is perceived in the Member States of origin too. The treatment of Polish workers in the Netherlands is noted in Poland and the negative remarks of leading British politicians on the alleged abuse of the UK National Health Service by Romanian nationals are reported in the press in Romania. In April 2013 the Ministers of Interior of four Member States (Austria, Germany, the Netherlands and the UK) in a letter to the Presidency of the Justice and Home Affairs Coun- cil confirmed that their countries will always welcome Union citizens who move to another EU country to work or to take up professional training or university studies. But in the same letter they state: „Currently, a number of municipalities, towns and cities in various Member States are under a considerable strain by certain immigrants from other Member States. These immigrants avail themselves of the opportunity that freedom of movement provides, without, however, fulfilling the requirements for exercising this right. This type of mi- gration burdens the host societies with considerable additional costs, in particular caused by the provision of schooling, health care and accommodation. On top of this strain on vital local services, a significant number of new immigrants draw social as- sistance in the host countries, frequently without a genuine entitlement, burdening the host countries’ social welfare systems.” The Ministers ask for an urgent discussion on the EU rules on access of Union citizens who arrived recently in another Member State to social benefits in that state. They propose a dis- cussion on the interpretation of Directive 2004/38 in order to be able to take effective sanc- tions against fraud and abuse of the right to free movement, including such sanctions as ex- pulsions and entry bans.2 The letter of the Ministers of Interior dealt with issues that in most Member States are in the competence of Ministers of Social Affairs. The qualification ‘immigrants’ in the letter 1 Statistics in focus no. 31/2012, p. 2. 2 Council document 10313/13. 5 indicates that the authors do not perceive those persons primarily as Union citizens. Four other Member States with large numbers of resident nationals from other Member States (Belgium, France, Italy and Spain) did not make similar statements. The total number of nationals of other Member States living in the latter four states (5.7 million) exceeds the number of nationals of other Member States living in the four Member States that signed the letter of April 2013 (5.3 million). The European Commission reacted to the letter of the four Member States in a letter of May 2013 with a summary of the key principles of European free movement law and an offer to assist Member States in the application of current free movement law.3 In a first reaction to the press the Commission mentioned that none of the four Member States had been able to provide evidence that there is a problem with benefit tourism.4 At their meeting in June 2013 the JHA Council asked the Commission to report on this issue and postponed the discussion until the end of the year. The large differences in unemployment rates between Member States, partly due to Member States being unequally effected by the economic crisis, has resulted in increased migration from Member States with high unemployment levels (e.g.