EU Freedom of Movement for Workers: Evolution and Rights
EU Freedom of Movement for Workers
Evolution of the Principle
1st Stage (1961)
The right to free movement was introduced with restrictions. Spanish nationals could take up a job if not employed by a national within three weeks. Community workers had equal treatment rights (but not absolute) regarding wages and protection against dismissal. They also had collective rights, such as the right to vote but not to stand in elections. Workers could be accompanied by their spouse and children under 21 or over 21 if dependent.
2nd Stage (1964)
The three-week field disappeared, but exceptions remained, such as national preference for certain jobs. Workers could stand in elections after three years of employment in the Member State. The concept of family was extended to include ancestors and descendants of both the employee and their spouse, regardless of nationality.
3rd Stage (1968)
This stage consolidated the principle of free movement. Key regulations include Regulation 1612/68/EEC of October 15 and Directive 2004/38/EC of April 29.
Content of the Right to Free Movement of Workers
2.2.1. The Core Principle: Non-Discrimination
The core principle is non-discrimination based on nationality in access to employment, working conditions, and instrumental freedoms. Workers have the right to move, work, and stay in an EU country on equal terms with nationals. Article 7 of the Treaty on the Functioning of the European Union (TFEU) addresses the scope of the principle of equality on grounds of nationality.
Directive 2004/38/EC further explains these rights, granting workers and their families:
- Right to Exit and Enter: The right to leave their country of origin and enter another EU country for employment.
- Right to Temporary Residence (Up to 3 Months): Requires a valid ID card or passport.
- Right to Residence (Over 3 Months): Requires registration with the competent authorities and obtaining a Certificate of Registration.
- Right to Permanent Residence: Granted after five years of continuous legal residence in the host Member State.
Limitations:
- Absence of more than two years without justification can affect temporary residence rights.
- Unemployment for more than one year can limit access to permanent residency.
Family Members: Non-EU family members require a residence card, valid for five years. Temporary absences (less than six months) do not impact the card’s validity. Absences exceeding 12 months are permitted for specific reasons like pregnancy, childbirth, serious illness, or work postings.
Rights in Case of Death or Divorce
Articles 12 and 13 of Directive 2004/38/EC address situations where a worker dies or there is a divorce:
- EU citizen family members retain residence rights if the worker dies.
- Non-EU family members retain residence rights if they resided in the host Member State for at least one year before the worker’s death.
- The surviving spouse, if a national of the host Member State or eligible for citizenship through marriage, retains residence rights.
Other Cases Where Residence Rights are Retained:
- Retirement: Workers who have worked and resided in the host Member State for the last year and three years, respectively.
- Incapacity for Work: Workers who have resided in the host Member State for over two years (this requirement is waived if the incapacity is work-related).
- Frontier Workers: Workers engaged in paid employment after three years of continuous employment and residence in the host Member State (e.g., a German resident in Spain working in France).