EUROPE 2007 EUROPEAN REPORT on the Free Movement of Workers in Europe in 2007 Rapporteurs: Prof. Kees Groenendijk, Prof. Roel Fernhout, Prof. Elspeth Guild, Prof. Pieter Boeles, Dr. Ryszard Cholewinski and Dr. Paul Minderhoud December 2008 1 EUROPE 2007 Contents Executive summary General introduction Chapter I Entry, residence, departure Chapter II Access to employment Chapter III Equality of treatment on the basis of nationality Chapter IV Employment in the public sector Chapter V Members of the family Chapter VI Relevance/Influence/Follow-up of recent Court of Justice Judgments Chapter VII Policies, texts and/or practices of a general nature with repercussions on free movement of workers Chapter VIII EU enlargement Chapter IX Statistics Chapter X Miscellaneous 3 EUROPE 2007 Executive Summary Free movement of workers is a cornerstone right of all nationals of the Member States. In examining how the Member States have implemented this right in 2007, the following key issues arise: • Access to the territory, residence and protection from expulsion: workers and job seekers are able to access the territory of other Member States and to remain their under the provisions of Directive 2004/38. A number of Member States appear to have taken the opportunity of a new directive to introduce new restrictions which did not apply before. This phenomenon deserves close attention as it does not appear to be consistent with the intention of the directive. • Transitional arrangements regarding EU-8 workers are gradually being lifted across all the Member States. There are very few member States which are still applying significant restrictions. In light of this it seems unlikely that many Member States will seek to justify a further extension of the transitional arrangements for the EU-8. As regards the EU-2, the situation is much less positive. Many Member States apply transitional restrictions, even one EU-8 Member State. The protection of job seekers seems particularly weak as regards expulsion. • Equal treatment in access to procedures is a substantial problem in a number of Member States. Delays in administrative procedures which result in the inability of a worker to enjoy his or her rights are widespread. Respect for the obligation to issue a residence certificate immediately is widely flaunted and access to remedies not al- ways available. These weaknesses hinder the exercise of the right of free movement with particularly severe consequences for job seekers and their family members. • Language requirements are still applied in many Member States although they con- stitute an important obstacle to free movement of workers. While in many cases these requirements are stated to be applied according to the principle of proportion- ality, the area is one deserving careful attention. • A number of Member States are denying the right of family reunification with third country national family members of EU migrant workers where those family mem- bers seek to enter from outside the EU. This is causing substantial hardship for workers in a number of Member States and a distortion of the use of free movement rights as workers, in some cases in desperation, excise free movement rights to move to yet another Member State primarily in order to enjoy family reunification. This is counterproductive to the good functioning of the internal market. In general, 2007 has seen some progress towards the realisation of the free movement rights of workers across the EU though there is still much room for improvement. 5 EUROPE 2007 General Introduction 1. TRANSPOSITION OF DIRECTIVE 2004/38 In most Member States the transposition of Directive 2004/38 started in 2006 and was com- pleted during 2007. Only Luxembourg did not succeed in transposing the Directive in its national legislation in 2007. In the majority of Member States the transposition of Directive 2004/38 resulted in a reinforcement of the status of EU migrants and their family members in comparison with their status under the previous law. In some Member States rules formerly in administrative instructions or case-law of national courts have been codified in legislative acts. In some Member States transposition resulted in national rules that are more favourable than the Directive. In Belgium the national law provides for acquisition of the permanent residence status after three years of lawful residence rather than the five years provided for in the Directive. On the other hand, several national reports mention that the transposition of Directive 2004/38 was used as an occasion to introduce more strict rules. In Denmark, Finland, Ireland and the UK with reference to the Akrich judgment a rule was introduced requiring third- country national family members to prove previous lawful residence in another Member State. Italy limited the admission of those family members to the ones who had regularly entered the country (see chapter 1). In Lithuania the acquisition of the permanent residence status was made conditional on passing a language test. Germany reduced the access to so- cial benefits for jobseekers not qualifying as a worker. Most of these retrograde measures are problematic considering the text of the Directive and the recent judgment of the Court in Me- tock, either because the Court held that requiring previous lawful residence in another Mem- ber State or regular entry is incompatible with the Directive, or because of the Court’s gen- eral observation “that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals” (par. 59). 2. ENLARGEMENT At the beginning of 2007 Bulgaria and Romania acceded to the Union. The number of na- tionals of other EU Member States having registered residence in those two states is still relatively small (approximately 5,000 in Bulgaria and 9,000 in Romania). Most EU-15 Member States decided to make use of the transitional provisions on workers from the two new Member States. All EU-8 Member States, except Hungary granted full freedom of movement to citizens of Bulgaria and Romania. In reports on some EU-8 Member States disagreement with the continued application of the transitional regime to their workers in some of the EU-15 is mentioned as a major reason for allowing full freedom of movement to Bulgarian and Romanian nationals. Several EU-15 states decided in 2007 to no longer apply the transitional rules to EU-8 workers (see chapter 8). Several reports mention problems with substandard employment conditions (Ireland and Finland) or substandard housing conditions (Netherlands) of (posted) EU-8 workers. According to some of those reports, the legislative measures against those practices are rather ineffective. 6 EUROPE 2007 3. APPLICATION OF SCHENGEN ACQUIS IN EU-10 A major event in 2007 was the full application of the Schengen acquis in the EU-10. The lifting of controls on persons at the internal borders with the EU-10 Member States is of great practical and symbolic importance. It removes practical obstacles to the free movement of persons between Member States. In several EU-10 Member States the importance of this event was compared with the accession to the EU in 2004. Application of the Schengen ac- quis was considered as the final acquisition of full membership of the EU. 4. RECOGNITION OF QUALIFICATIONS AND ACCESS TO PUBLIC SERVICE In the majority of Member States the transposition of Directive 2005/36 of the recognition of qualification was completed in 2007 (see chapter 2). The reports on Estonia, France, Hungary, Spain and the UK mention improvements in the access of Union citizens to employment in public service during 2007 (see chapter 4). 5. DEPORTATION AND DETENTION The reports on Ireland, Italy and the Netherlands refer to the introduction of national legisla- tion or administrative practices on deportation and detention of Union citizens on public or- der grounds or because Union citizens are held to be an unreasonable burden on the public purse. The Irish report refers to “multiple deportation” of Romanian nationals. The new na- tional rules or measures either are an explicit effort to establish which actions of national immigration authorities are still in conformity with Community free movement law or they appear to have been adopted without proper regard to the applicable Community law. 6. EQUAL TREATMENT IN IMMIGRATION PROCEDURES? In some reports (a.o. on Belgium and Sweden) the question is raised whether the more strict national procedural rules in immigration cases generally, adopted in 2007, can be applied to Union citizens and their family members. Where those national rules provide for special immigration tribunals or for a more limited judicial review than afforded to nationals of the Member State concerned in their disputes with national authorities, the application of more strict immigration procedures may be problematic as to their compatibility with Directive 2004/38, with the equal treatment provisions and with the general principle of Community law that national procedural rules should at least provide equivalent protection of rights granted to individuals under Community law. In some Member States the Ombudsman appears to play an important role in protecting free movement rights of EU nationals in cases where access to national courts may be diffi- cult or not possible (e.g. in the Czech Republic, Hungary and Luxembourg). 7. BUREAUCRATIC OBSTACLES AND LANGUAGE REQUIREMENTS Several reports mention bureaucratic or other obstacles to free movement: long delays in the actual registration (Cyprus), or in issuing documents to EU nationals (UK) or the application of an additional income tax requiring nationals to pay the difference between the income tax in the host Member State and the own Member State (Latvia). This tax may well be an ob- 7 EUROPE 2007 stacle to return to the latter Member State. Long delays in registration and issuing of docu- ments may well result in unequal treatment of (undocumented) EU nationals by employers during this waiting period.