Free Movement of
Persons
Freedom of movement
for workers is based on
Regulation No 1612/68
which states in its preamble that "mobility of labour within the Community
must be one of the means by which the worker is guaranteed the possibility
of improving his living and working conditions and promoting his social
advancement". The underlying principle is that of equal treatment, with each
citizen of a Member State enjoying the right to take up paid employment in
another Member State under the same conditions as that Member State's own
citizens.
Regulation (EEC) No 1612/68 expressly includes workers within a broad definition that also covers those seeking employment, those who have lost their jobs and those who have become unfit for work, such as disabled workers, in the host Member State.
Although not mentioned in the Treaty, the worker's family is not forgotten: there is a right for migrant workers to be joined by their spouse, their descendants who are aged less than or who are dependent, and their dependent relatives in the ascending line, irrespective of nationality. Member States are also required to facilitate the entry of other relatives who are dependent or live under the same roof . Generally speaking, the purpose of the Regulation is to take into account the economic and social needs of workers who, together with their family, move to another Member State.
Free movement of self-employed persons, service providers and recipients of services is provided under Community law by Directive 73/148/EEC. This ensures the free movement of those who wish to establish themselves in another Member State to work as self-employed persons or to provide or receive services there on a temporary basis. As in the case of workers, also the family members (spouse, children under 21 and dependent relatives in the ascending or descending line) are beneficiaries of this right.
Economically non-active nationals of a Member State – students enrolled in vocational training, retired persons and other non-active persons - may also benefit from the right of residence provided that they are covered by sickness insurance is respect of all risks in the host Member State, and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence. Member States issue a residence permit, the validity of which may be limited to five years on a renewable basis in case of retired and non-active persons, and for the duration of studies in case of students..
Council Directive 64/221/EEC of 25 February 1964 restricts Member States' right to take measures on grounds of public policy, public security or public health. It offers any beneficiary of Community law certain safeguards and guarantees if they are the subject to a measure taken on grounds of public policy, public security or public health in matters connected with the movement or residence of foreign nationals. The Directive relates to measures concerning entry into the territory, issue or renewal of residence permits, or expulsion from the territory, taken by Member States on grounds of public policy, public security or public health. Such grounds may not be invoked to service economic ends. Only the diseases or disabilities listed in the Directive may justify refusal of entry into a territory or refusal to issue a first residence permit (e.g. tuberculosis, syphilis, drug addiction, psychotic disorders). Those which occur after a first residence permit has been issued do not justify refusal to renew the residence permit or expulsion from the territory.
The freedom of movement for workers would also be threatened by the loss of social protection suffered by the migrant worker (and his family) by comparison with the worker who spends all his career in the same Member State. For example, he would be penalised by systems imposing conditions such as a qualifying period or previous work in the country. The co-ordination of national social security systems lay down rules and common principles which must be respected by all the national authorities. In doing so, they ensure that the application of different national regulations does not penalise those exercising their right to move and reside within the European Union and European Economic Area: the aim is not to remove the particular characteristics of different national systems but to correct those aspects of national legislation which could produce undesirable effects for the migrant worker and his family. The Community arrangements are aimed exclusively at protecting the European citizen working, residing or staying in another Member State.
The co-ordination mechanism of national social security systems developed on the basis of Regulation 1408/71 of 14 June 1971 are intended not to harmonise but simply to co-ordinate the national social security systems. In other words, each Member State is free to decide who should be covered by its legislation, what benefits are provided and under what conditions, how these benefits are calculated and the level of contributions to be paid. Community social security arrangements do not replace the various national systems with a single European one. Such harmonisation would be impossible due to the wide variation in living standards among the eighteen Member States of the European Union and European Economic Area. Furthermore, even those countries with similar living standards have different social security systems which are the result, on the one hand, of long-standing traditions deeply rooted in the national culture and, on the other, of the preferences of the various Member States.
As far as invalidity schemes are particularly concerned, it should be noted that they vary considerably among the 17 countries belonging to the European Union and the European Economic. However, they can be divided into two main types:
- In many countries, invalidity pensions are calculated in the same way as old-age pensions. In these countries, the amount of the pension depends on the duration of the periods of insurance: the longer your insurance period prior to becoming an invalid, the higher your pension will be. Under these schemes it is not normally necessary to be insured at the actual moment at which the disability arises. In other words, a person who ceased working a number of years prior to becoming disabled will still be entitled to an invalidity pension based on his preceding periods of insurance [for example: Germany, Denmark, Italy, Luxembourg, France (only for miners) and Greece (except agriculture)];
- In other countries, the amount of the invalidity pension does not depend on the duration of insurance periods. This means that people receive the same amount of pension whether they were insured for five, 10 or 20 years prior to becoming an invalid. Under these schemes, entitlement to a pension does, however, depend upon being insured at the time the invalidity arises; people ceased working a short time before will not be entitled to an invalidity pension [for example: Belgium, Spain, France (except the special scheme for miners), Greece (only in agriculture), Ireland, the Netherlands and the United Kingdom].
This difference between national invalidity insurance schemes hinders European co-ordination in this field and is not always easy to understand but, as with the other categories of benefits, the aim of Community arrangements is simple: when a migrant worker becomes an invalid, he should not be at a disadvantage compared with a person who has always lived and worked in one country.
However, determining the degree of invalidity poses a potential problem for those persons who have been insured in more than one country. These decisions are made under the terms of national legislation by the national institutions of each State in which a person was insured. The decision of one institution only involves the institutions of all the other States concerned in a few particular cases.
The considerable divergence between the criteria for determining the degree of invalidity as defined in national legislation may have serious consequences as, in most cases, the amount of pension depends on the degree of invalidity. This arises from the fact that the Community arrangements do not harmonise national social security systems but restrict themselves to co-ordinating them. Nevertheless, all migrant workers would benefit from an improvement in the mutual recognition of decisions made with regard to the degree of invalidity.
In order to facilitate the mobility of workers in the Employment Economic area, the Commission has set up a European labour market network (EURES) linking more than 450 Euroadvisers - specialists in employment matters- throughout Europe.
