Professor Elspeth Guild
There are two main systems regulating access of non-nationals to the labour markets of EU states which operate side by side. The first, and best known, is the system of free movement of workers which applies only to nationals of the 28 Member States (with certain limitations still applicable to Croatian nationals) and their family members of any nationality who can join them. This system is based on the principle of equal treatment with nationals of the state in all areas related to work. An EU citizen is entitled to move to another Member State to seek employment for up to 6 months at a time. If the person gains employment, be it part-time (the Court of Justice has held that even seven hours a week can be sufficient for a person to claim the status of a worker) and temporary, he or she is entitled to equal treatment not only in wages and conditions of work, access to all work related benefits and trade union membership and participation on the same basis as nationals of the state but no limitation can be placed on his or her permit of residence in the state. Under this system according to the EU’s statistical agency about 3 – 4 % of the 508 million citizens of the EU live in a Member State other than that of their underlying nationality. How many of these citizens are temporary migrants is less clear as many EU migrant workers who get temporary jobs in a host Member State return to their home Member State or move on to another Member State when the job ends. The largest age group of EU migrant workers is between 15 – 34 and the largest sectors in which they work are traditionally highly mobile and with substantial turn over – manufacturing, construction, accommodation and food being among the highest. It is likely that there is substantial turnover and intra-state mobility in these sectors.
Temporality is not a legal characteristics of the EU free movement of workers system. As long as EU citizens are working, be it full time or part time, they are very strongly protected against expulsion by the host state. When they are involuntarily unemployed they continue to enjoy this protection. Nonetheless, extra protection against expulsion and greater access to social welfare benefits which are not linked to employment are available to EU citizens after five years residence when they acquire permanent residence. Even greater protection against expulsion accrues after ten years residence.
The second system of labour migration in the EU applies to third country nationals, that is anyone who is not a citizen of one of the 28 Member States. This system is characterised by great fragmentation both in terms of territory to which labour migration is permitted (the 28 Member States are divided up into their 28 different territories and the migrant worker is limited to work in only one of them) and on the basis of the type of employment which the migrant workers is admitted to carry out. Unlike EU migrant workers who are entitled to take any job and on the basis of that employment to enjoy full equal treatment with national workers, third country national workers are admitted only to take employment in certain sectors and do not enjoy equal treatment with nationals of the state or with EU migrant workers. The European Union has adopted 15 measures on regular migration for third country nationals into the EU (see Annex 1). Denmark doe not participate in any of these measures and Ireland and the UK have opted into a small minority of them (see Annex 1).
As was the case in respect of EU migrant workers, one of the first measures to be adopted provides for the coordination of social security contributions for third country national migrant workers made in more than one Member State. The system provides for aggregation of contributions made in different Member States, the principle of non-discrimination and the right to export social benefits accruing from one Member State to another. However, this system of coordination of social security is not accompanied by a right to work in more than one Member State. Only those third country nationals who acquire long term residence status under Directive 2003/109 gain an opportunity to move and work in a second Member State from that where they gained the status.
The main entry systems[1] are first, Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (the Blue Card) which can lead to long term residence status. The rights which Blue Card holders enjoy are limited to equal treatment with nationals as regards working conditions, social security, pensions, recognition of diplomas, education and vocational training. Only after two years can they change employment to another highly skilled job so they remain tied to one employer until then. This is the only entry system which leads to permanent residence.
The second entry system is Directive 2014/36 on admission of seasonal workers which Member States must apply from September 2016. It is a paradigmatic temporary worker system. Seasonal work is defined as tied to the seasons and the maximum limit of stay is between five and nine months per calendar year of residence for a seasonal worker. The entry visa is issued only on evidence of sufficient resources not to be a burden on the social assistance system of the state, comprehensive sickness insurance and adequate accommodation. The directive facilitates the re-admission under the scheme within five years for those who have fulfilled the conditions of a previous period of work in the EU. There is the possibility of changing employers for the seasonal worker. As regards rights, the directive requires equal treatment with own nationals in the following areas:
- terms of employment, including the minimum working age, and working conditions, including pay and dismissal, working hours, leave and holidays, as well as health and safety requirements at the workplace;
- the right to strike and take industrial action, in accordance with the host Member State’s national law and practice, and freedom of association and affiliation and membership of an organisation representing workers or of any organisation whose members are engaged in a specific occupation, including the rights and benefits conferred by such organisations, including the right to negotiate and conclude collective agreements, without prejudice to the national provisions on public policy and public security;
- back payments to be made by the employers, concerning any outstanding remuneration to the third-country national;
- coordination of social security (with the possible exclusion of family benefits and unemployment benefits);
- access to goods and services and the supply of goods and services made available to the public, except housing, without prejudice to the freedom of contract in accordance with Union and national law;
- advice services on seasonal work afforded by employment offices;
- education and vocational training (directly linked to the specific employment activity and by excluding study and maintenance grants and loans or other grants and loans);
- recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures;
- tax benefits, in so far as the seasonal worker is deemed to be resident for tax purposes in the Member State concerned (which can be limited in its application to cases where the registered or usual place of residence of the family members of the seasonal worker for whom he/she claims benefits, lies in the territory of the Member State concerned).
This may see a very elaborate system for workers who are only coming to do seasonal work for up to 9 months but the framework of rights was exceedingly important for some of the institutional law makers, in particular the European Parliament which was anxious about the issue of exploitation.
The third labour migration access measure the EU has adopted for third country nationals is Directive 2014/66 on admission of intra-corporate transferees. These workers, like the seasonal workers, are temporary and are not intended to qualify for permanent residence. It applies to intra-corporate transfer as managers, specialists or trainee employees. Those admitted under this category have the right to equal treatment with nationals of the state in the following areas:
- freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the rights and benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security;
- recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures ;
- social security coordination;
- access to goods and services and the supply of goods and services made available to the public, except procedures for obtaining housing as provided for by national law;
- the possibility of bringing some family members to the host state with them.
What is surprising here is the absence of equal treatment in wages and working conditions. Instead the directive requires that all conditions in the law, regulations, or administrative provisions and/or universally applicable collective agreements applicable to posted workers in a similar situation in the relevant occupational branches are met during the intra-corporate transfer with regard to terms and conditions of employment other than remuneration. As regards remuneration itself, it requires that the remuneration granted to the third-country national during the entire intra-corporate transfer is not less favourable than the remuneration granted to nationals of the Member State where the work is carried out occupying comparable positions in accordance with applicable laws or collective agreements or practices in the Member State where the host entity is established.
The benefits of temporary migration schemes which some academics and policy makers praise have not, at least for the meantime, found much favour with the EU law maker. Among the main preoccupations of the law makers has been the issue of equal treatment with national workers in similar jobs. The EU law maker has been much influenced by the concerns among civil society organisations such as trade unions that migrant workers must not be used to undercut the wages and working conditions of those already in the labour force of the Member States. Thus in all of the directives there has been inclusion of provisions which safeguard the relationship of equality in this area. On the other hand, the EU law maker has been less concerned about limiting the period of time during which a third country national can work in the EU.
[1] For these purposes the provisions on students and researchers are not included.