European Union Law: Free Movement of Workers

EU solidarity

The broad concept of EU solidarity is said to be the underlying aspiration of the integration of the people of Europe and is guaranteed by the following freedoms:

Central to the European Union is the concept of unification of nations with the emphasis representing recognition of the autonomy of individual states.

Free Movement of Workers

Article 39 of the EC Treaty lays down the universal recognition of the free movement of workers within the European Union.

What is guaranteed by Article 39?

Article 39 guarantees the following rights:

  • The right to look for a job in another Member State
  • The right to work in another Member State
  • The right to reside there for that purpose
  • The right to remain there
  • The right to equal treatment in respect of access to employment, working conditions and all other advantages provided to the workers in that Member State

What is meant by a worker?

The European Court of Justice has defined a worker for the purposes of Article 39 as the following:

“any person who pursues activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, will be treated as a worker.”

This wide definition is important when considering the following activities:

  • The armed forces and public servants
  • Family members of workers
  • Claims for pensions and social security rights

Application to Sportsmen

The application of Article 39 has become apparent in relation to sport especially when dealing with footballers. The most famous case was the Bosman case which stated that footballers were considered workers under Article 39 and should be given the same rights as other workers and therefore when out of contract they are free to move to any other Member State to play for a club in that Member State without the requirement of a transfer fee being paid to their previous club.

Ten years later in 2005 the European Court of Justice further qualified this ruling by ruling on a case concerning a Russian player plying his trade in Spain. The Court held citizens rights and those of sporting association from countries which have agreements with the European Union will be offered the same protection as those from European Union Member States.

The decision of the case was found due to the 1994 Agreement on Partnership and Co-operation between the EU and Russia.

Please note that this ruling wasn’t simply in the case of footballers and applies to all workers from countries not part of the EU but which have similar agreements in place with the EU.

What is required for a person to move from Member State to Member State?

All that is required to enter another EU Member State if you are from an existing EU Member State is the following:

  • A valid passport or identity card
  • Sufficient money to support yourself without becoming a burden on the Member State

You do not need to prove yourself financially independent however.

Right to Equal Treatment

The right to equal treatment is crucially important when looking at Article 39 EC. This means that an individual Member State cannot adversely express its own public policy, public health or public security in an attempt to restrict the movement of EU nationals into their member state.

Job Vacancy

The right to equal treatment ensures that all advertised jobs in a Member State are available to all nationals of EU Member States. Following the ruling in 2005 described above this also applies to nationals of those countries with the required agreement with the EU in place.

In some cases a country may restrict a job vacancy only to nationals of its own if it is likely to threaten pubic order or if it is concerned with state interests.

Previous Employment – Aggregation

Regulation (EEC) No 1408/71 guarantees equal treatment in all EU Member States incorporating a system of aggregation in order to calculate previous employment in relation to benefits.

When calculating benefits in one Member State under this EC regulation contributions to benefits made in another EU Member State will be taken into consideration. This is particularly important when dealing with pensions.

Social Security Benefits

Regulation (EEC) No 1408/71 also guarantees social security benefits for family members of any workers within the Member States regardless of where they are living or where they are currently working.

Retirement Pension

Once a working reaches the accepted age of retirement which in most EU Member States is 65 they will be able to claim a full retirement pension from that Member State in which they reside if they have been in that country for a full three years.

Accidents at Work

If a worker has suffered an accident at work which has prevented them from working they will be able to claim benefit from the Member State of which they were working in so long as they have completed two years residency prior to this situation occurring.

What is the case concerning Enlargement of the European Union?

The right to free movement of workers from, to and between the European Union Member States that joined the European Union on 1 May 2004 (Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, Slovakia) and on 1 January 2007 (Bulgaria, Romania) may be restricted during a transitional period of maximum seven years after accession.