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The freedom of movement for workers

September 26, 2016

Mobile workers in the European Union enjoy comprehensive protection from discrimination on the basis of their nationality.

Two construction workers standing in a building, reading the building plans.
Source:  iStock

Freedom of movement for workers

Freedom of movement for workers gives nationals of EU Member States the right to freely choose their employment within the EU. They do not require a work permit. In all of the other Member States, they enjoy the same access to employment as that country’s citizens, which means that they and their family members have a right to reside there to engage in employment.

Freedom of movement for workers prohibits discrimination against EU workers on the basis of nationality (Article 45 (2) of the Treaty on the Functioning of the European Union (TFEU) and Article 7 (2) of EU Regulation 492/2011, the Free Movement of Workers Regulation).

This also applies to the provision of all social and tax advantages. Indirect ("covert") discrimination is also prohibited; in other words, measures which typically afford less favourable treatment to foreign nationals than national workers, without referring directly to nationality, are not permitted either. An example of this kind of indirect discrimination could be a requirement for applicants for a job in Germany to have German language skills which, objectively, are not needed for the job in question. For other jobs, German language skills may genuinely be necessary. If applicants for these jobs are asked to submit evidence of their language skills, the employer may not require them to have taken the language test in Germany. In addition, an employer may not treat an EU citizen less favourably than other applicants solely because of his or her residence in another Member State.

EU citizens are also permitted to enter another Member State and reside there for the purpose of seeking employment. However, this right only exists for a period of up to six months, and beyond that only as long as those concerned can provide evidence that they are continuing to seek employment and that they have a genuine chance of being hired (Section 2 (2) no. 1a of the Freedom of Movement Act/EU (Freizügigkeitsgesetz/EU)).

In certain circumstances, freedom of movement for workers continues to apply for six months or longer after the end of an employment relationship (for example in the case of temporary incapacity for work following an accident, or involuntary unemployment); this entitles the EU citizen and his or her family members to remain in the country during this period.

EU Directive 2014/54/EU, which was adopted in 2014, introduced measures to significantly strengthen in practice the rights conferred in the context of freedom of movement for workers. In particular, the Directive requires the Member States to establish national advisory bodies for migrant workers and their family members. These bodies offer them independent advice about access to employment, employment and working conditions, access to social and tax advantages, and access to vocational training and housing, as well as conducting surveys and independent analysis regarding the application of freedom of movement for workers. In Germany, the Office for the Equal Treatment of EU Workers was set up in May 2016; it offers support to all EU migrant workers, though not EU citizens who have been posted to Germany temporarily. It also publishes information in various official EU languages, free of charge, about rights conferred in the context of freedom of movement for workers, although this is still under development at present.

Transitional arrangements relating to freedom of movement for workers (and posting) for new Member States

At present, no transitional arrangements apply in Germany to nationals of new EU Member States. Since May 2011, unrestricted freedom of movement for workers has applied to the EU Member States of Poland, Hungary, the Czech Republic, Slovakia, Slovenia, Estonia, Latvia and Lithuania, which joined the EU in 2004; it has applied to the Member States of Romania and Bulgaria, which joined in 2007, since January 2014, and to Croatia, which became a member in 2013, since 1 July 2015.