December 2004

Below, you will find, as with all the chapters in this guide to the negotiations, an analysis of the issues in this chapter, both in general, and as regards the individual negotiating countries.

This chapter has a very direct impact on peoples’ lives and the professional and personal choices they make. Therefore, and in order to ensure that suitable information is readily available, accurate and easy to find, the Commission has also prepared a practical guide, which explains, in simple terms, the practical implications for all EU citizens, present and future, of the negotiations which have taken place on the issue.

The guide is here : Practical guide - Free movement of persons

Background

The acquis covers the four broad areas of mutual recognition of professional qualifications, citizens' rights, free movement of workers and co-ordination of social security schemes. There are links between this chapter and those chapters dealing with the other freedoms (goods, capital and services) as well as with the social policy and employment and justice and home affairs chapters.

Through the general system of mutual recognition, the Community seeks to eliminate obstacles to the taking up and pursuit of regulated professions, accepting the principle that a person fully qualified to practise a regulated profession in one Member State should be entitled to do so anywhere in the Community. Co-ordination of training systems is provided for architects and some health-care professionals, facilitating further mutual recognition in these cases.

Citizens' rights cover voting rights and right of residence. Through the former, the rights of all EU citizens to participate actively in the political life of the Union are guaranteed, with directives covering the procedures applicable to European and municipal elections. Rights of residence, originally only foreseen for workers, have been extended to cover non-active persons and case law such as the Gravier ruling, concerning students, ensures that discrimination is not tolerated.

Applicant countries will need to ensure that, concerning the free movement of workers, there are no provisions in their legislation which are contrary to Community rules and that all provisions, in particular those relating to criteria on citizenship, residence or linguistic ability, are in full conformity with the acquis.

Co-ordination of social security schemes is also governed by regulations and these measures will also be directly applicable upon accession. The principles of co-ordination remain simple - those who exercise their right to freedom of movement throughout the Community should not be penalised as a result. However, the practical complexity of this area and the challenge it represents in terms of administrative capacity should not be underestimated. Applicant countries have experience in implementing bilateral agreements, but they will need to reinforce existing structures to be able to cope with a system which places heavy demands on their administration.

Horizontal issues

I. Free movement of workers

The key issue in this chapter is that of free movement of workers and it has been treated in a broadly similar way for all countries.

The political and practical importance of this area of the "acquis" and the sensitivities and uncertainties surrounding mobility of workers led the EU to propose a transitional measure. In considering whether it was appropriate to propose a transition period in this chapter, the EU took into account elements such as forecasted labour movements following accession and the likely destination of these flows. The degree of uncertainty regarding the possible numbers and the likely labour market effects of free movement were also major factors.

Recently confirmed research suggests that the impact on the EU labour market of the freedom of movement of workers after accession should be limited. However, it is expected that the predicted labour migration would be concentrated in certain member states, resulting in disturbances of the labour markets there. Concerns about the impact of the free movement of workers are based on considerations such as geographical proximity, income differentials, unemployment and propensity to migrate. The EU was also worried that this issue threatened to alienate public opinion and to affect overall public support for enlargement.

The EU has not requested a transition period in relation to Malta and Cyprus. However for all other countries where negotiations were under way, a common approach has been put forward. The essential components of the transition arrangement are as follows:-

• A two year period during which national measures will be applied by current Member States to new Member States. Depending on how liberal these national measures are, they may result in full labour market access.
• Following this period, reviews will be held, one automatic review before the end of the second year and a further review at the request of the new Member State. The procedure includes a report by the Commission, but essentially leaves the decision on whether to apply the acquis up to the Member States.
• The transition period should come to an end after five years, but it may be prolonged for a further two years in those Member States where there are serious disturbances of the labour market or a threat of such disruption.
• Safeguards may be applied by Member States up to the end of the seventh year.

The transition arrangement also includes a number of other important aspects, such as a standstill clause, whereby current Member State labour markets cannot be more restricted than that prevailing at the time of the signature of the Accession Treaty. Also current Member States must give preference to acceding country nationals over non-EU labour.

A declaration will be attached to the Accession Treaty stating that current Member States shall endeavour to grant increased labour market access under national law, with a view to speeding up the approximation to the acquis and even an encouragement to improve access before accession.

Austria and Germany have the right to apply flanking national measures to address serious disturbances or the threat thereof, in specific sensitive service sectors on their labour markets, which could arise in certain regions from cross-border provision of services.

Under the transition arrangement the rights of nationals from new Member States who are already legally resident and employed in a Member State are protected. The rights of family members are also taken into account consistent with the practice in the case of previous accessions.

This arrangement has been presented to twelve candidate countries and ten have been able to accept it subject to some minor adaptations. The solution reached in respect of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia is identical - reciprocity vis-à-vis current Member States and the possibility to apply safeguards against new Member States once at least one new Member State is subject to national measures, as well as a statement made at the Accession Conference that Member States will endeavour to grant increased labour market access to nationals of these seven countries

Malta is concerned that its labour market could come under pressure following accession and so a safeguard clause has been agreed, which will run for 7 years. A joint declaration has also been attached to the Act of Accession allowing for recourse by Malta to Community institutions, should Malta's accession give rise to difficulties in relation to free movement of workers.

With respect to Cyprus, no transition arrangements have been requested by either Cyprus or the EU.

II. Mutual Recognition of professional qualifications

The issue of how to treat qualifications obtained in third countries arises for come candidate countries. For example, how should the EU treat qualifications obtained in respect of citizens from the candidate countries who completed their education when individual candidate countries were part of the Soviet Union (in the case of the Baltics) or Yugoslavia in the case of Slovenia? This poses a possible problem principally in relation to the specific directives on the health care professions and architecture.

The solution devised by the EU aims on the one hand to guarantee the integrity of professions in the EU and protects citizens of the EU and also to give effect to these rights in a way that is simple and clear to all citizens of an enlarged Union, and which does not result in an unnecessary administrative burden for individuals or administrations.

The EU has retained the notion of a declaration by the relevant candidate country bodies of the equivalence of the qualifications in question to their diplomas (which, upon accession, would be automatically recognised in the EU), accompanied by an attestation that the holders of the qualification have been recently engaged in the activities in question.

This double approach (declaration and attestation) offers all reasonable guarantees to EU citizens.

However it is difficult to ascertain with certainty the standard of qualifications dispensed in candidate countries and as a result extremely tough monitoring provisions, in particular for the sectoral directives, are foreseen.

All candidate countries are encouraged to step up their efforts to introduce the necessary administrative structures as well as education and training programmes to guarantee the level of competence of the qualified professionals required by the EU directives.

For professional qualifications obtained before harmonisation, candidate countries are expected to take measures to ensure that all their professionals can meet the requirements laid down by the directives and can therefore benefit from professional recognition throughout the EU from accession, in line with the procedures applied in past accessions.

III. Citizens' rights

Implementation of the directives on voting rights will in some cases require amendments to the Constitution. Alignment with the acquis on residence rights will only be fully possible upon accession and candidate countries will need to ensure that their legislation facilitates this.

IV. Co-ordination of social security

Application of the acquis on co-ordination of social security requires sufficiently developed administrative structures and capacity. All candidate countries have confirmed their readiness to assume the obligations relating to the financial transfers involved in co-ordination of social security schemes, in particular the financial transfers relating to the reimbursement of health care costs. They have also been encouraged to continue to conclude bilateral agreements with Member States between now and accession in order to further familiarise themselves with the practical workings of the system.

State of play

Negotiations have been closed for Cyprus, Hungary, Latvia, Malta, Slovakia, Czech Republic, Lithuania, Poland, Slovenia and Estonia. The chapter has been provisionally closed for Bulgaria in June 2002 and for Romania in December 2003 and definitely closed for both countries in December 2004.

The latest assessment of each candidate country’s compliance with the acquis under this chapter heading, can be found in the 2004 Regular Reports and in the Comprehensive Monitoring Reports, available at:
http://ec.europa.eu/enlargement/archives/key_documents/reports_2004_en.htm.

Country by country

Bulgaria

• Chapter opened: October 2001
• Status: provisionally closed June 2002
• Transitional arrangements: as described above

Cyprus (New Member State)

• Chapter opened: May 2000
• Status: Closed December 2002 (provisionally closed in June 2001)
• Transitional arrangements: none

Czech Republic (New Member State)

• Chapter opened: May 2000
• Status: Closed December 2002 (provisionally closed in October 2001)
• Transitional arrangements: as described above

Estonia (New Member State)

• Chapter opened: May 2000
• Status: Closed December 2002 (provisionally closed in March 2002)
• Transitional arrangements: as described above

Hungary (New Member State)

• Chapter opened: May 2000
• Status: Closed December 2002 (provisionally closed in June 2001)
• Transitional arrangements: as described above

Latvia (New Member State)

• Chapter opened: June 2001
• Status: Closed December 2002 (provisionally closed in June 2001)
• Transitional arrangements: as described above

Lithuania (New Member State)

• Chapter opened: June 2001
• Status: Closed December 2002 (provisionally closed in November 2001)
• Transitional arrangements: as described above

Malta (New Member State)

• Chapter opened: June 2001
• Status: Closed December 2002 (provisionally closed in June 2001)
• Transitional arrangements: safeguard in respect of free movement of workers

Poland (New Member State)

• Chapter opened: May 2000
• Status: Closed December 2002 (provisionally closed in December 2001)
• Transitional arrangements: as described above

Romania

• Chapter opened: March 2002
• Status: provisionally closed in December 2003
• Transitional arrangements: as described above

Slovakia (New Member State)

• Chapter opened: June 2001
• Status: Closed December 2002 (provisionally closed in June 2001)
• Transitional arrangements: as described above

Slovenia (New Member State)

• Chapter opened: May 2000
• Status: Closed December 2002 (provisionally closed in December 2001)
• Transitional arrangements: as described above