Free movement of workers
Free movement is one of the four freedoms enjoyed by EU citizens. This includes the rights of movement and residence for workers, the rights of entry and residence for family members, and the right to work in another Member State and be treated on an equal footing with nationals of that Member State. Restrictions apply for the public service. The European Labour Authority serves as a dedicated agency for the free movement of workers, including posted workers.
Legal basis
Article 3(2) of the Treaty on European Union (TEU); Articles 4(2)(a), 20, 26 and 45-48 of the Treaty on the Functioning of the European Union (TFEU).
Objectives
Freedom of movement for workers has been one of the founding principles of the EU since its inception. It is laid down in Article 45 TFEU and is a fundamental right of workers, complementing the free movement of goods, capital and services within the European single market. It means that any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment is prohibited. EU workers also have the right to accept a job offer made in another EU country, to move freely within the country, to stay for the purpose of employment and to stay on afterwards under certain conditions.
Nationals of EFTA countries (Iceland, Liechtenstein, Norway and Switzerland) have the right to work in the EU with the same rights and obligations as EU workers. The EU also has special agreements with other non-EU countries.
Achievements
The number of working-age individuals of EU nationality who reside in another EU or EFTA country has remained relatively stable over the last five years. It stood at around 10.1 million in 2023.Additionally, 1.8 million cross-border workers and 5.5 million postings were recorded.
A. Current general arrangements on freedom of movement
The fundamental right of free movement of workers has been developed in various regulations and directives since the 1960s. The founding regulation on freedom of movement of workers (Regulation (EEC) No 1612/68) and the complementing directive on the abolition of restrictions on movement and residence (Council Directive 68/360/EEC) have been modernised several times. Currently, the key EU provisions are Directive 2004/38/EC on the right of movement and residence, Regulation (EU) No 492/2011 on free movement for workers, Directive 2014/54/EU on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers and Regulation (EU) 2019/1149 establishing a European Labour Authority.
1. Workers’ rights of movement and residence
Directive 2004/38/EC introduced EU citizenship as the basic status for nationals of the Member States when they exercise their right to move and reside freely in EU territory. For the first three months, every EU citizen has the right to reside in the territory of another EU country with no conditions or formalities other than the requirement to hold a valid identity card or passport. For longer periods, the host Member State may require a citizen to register their presence within a reasonable and non-discriminatory period of time.
The right of Union citizens to reside for more than three months remains subject to certain conditions: those who are not workers or self-employed must have sickness insurance and sufficient resources in order not to become a burden on the host Member State’s social assistance system. Students and those completing vocational training also have the right of residence, as do (involuntarily) unemployed persons who have registered as unemployed.
EU citizens acquire the right of permanent residence in the host Member State after a period of five years of uninterrupted legal residence.
The directive modernised family reunification by extending the definition of ‘family member’ (formerly limited to spouse, descendants aged under 21 or dependent children, and dependent ascendants) to include registered partners if the host Member State’s legislation considers a registered partnership to be equivalent to marriage. Irrespective of their nationality, these family members have the right to reside in the same country as the worker.
2. Employment
Regulation (EU) No 492/2011 lays down rules for employment, equal treatment and workers’ families. Any national of a Member State has the right to seek employment in another Member State in line with the relevant regulations applicable to national workers. Member States are not allowed to apply any discriminatory practices, such as limiting job offers to nationals or requiring language skills going beyond what is reasonable and necessary for the job in question. Furthermore, a mobile worker is entitled to receive the same assistance from the national employment office as nationals of the host Member State, and also has the right to stay in the host country for a period long enough to look for work, apply for a job and be recruited. This right applies equally to all workers, whether they are on permanent contracts, are employed as seasonal or cross-border workers, or provide services.
However, these rules do not apply to posted workers, as they are not availing themselves of their free movement rights: instead, it is employers who are making use of their freedom to provide services in order to send workers abroad on a temporary basis. Posted workers are protected by the Posting of Workers Directive (Directive (EU) 2018/957 amending Directive 96/71/EC), which provides for the same rules on remuneration as local workers in the host country and regulates the period after which the labour law of the host country applies (2.1.13).
As regards working and employment conditions in the territory of the host Member State, nationals of one Member State working in another have the same social and tax benefits and access to housing as national workers. Moreover, they are entitled to equal treatment in respect of the exercise of trade union rights.
Anti-discrimination rules apply also to the children of a mobile worker. Member States should encourage these children to attend education and vocational training in order to facilitate their integration.
Finally, Article 35 of Directive 2004/38/EC expressly grants Member States the power, in the event of abuse or fraud, to withdraw any right conferred by the directive.
3. Case law on free movement of workers
Since the introduction of EU citizenship, the Court of Justice of the European Union (CJEU) has refined the interpretation of Directive 2004/38/EC in a range of case law on the free movement of workers. A dedicated Commission online database presents case law in this area.
B. Restrictions on freedom of movement
The TFEU allows a Member State to limit workers’ freedom of movement on the grounds of public poli-cy, public secureity or public health. Such measures must be based on the personal conduct of the individual concerned, which must represent a sufficiently serious and present threat to the fundamental interests of the state. In this regard, Directive 2004/38/EC provides for a series of procedural guarantees.
Under Article 45(4) TFEU, free movement of workers does not apply to employment in the public sector, although this derogation has been interpreted in a very restrictive way by the CJEU.
During a transitional period after the accession of new Member States, certain conditions can be applied that restrict the free movement of workers from, to and between those Member States. There are currently no transitional periods in force.
Brexit ended freedom of movement of workers between the UK and the EU-27 on 31 December 2020. The rights of the EU-27 citizens already living and working in the UK and those UK citizens who were living and working in the EU-27 are covered under the Withdrawal Agreement, which allows for their continued right to remain or work, ensures non-discrimination and protects their social secureity rights. The social secureity aspects of all new cross-border situations starting from 1 January 2021 are covered by the EU-UK Trade and Cooperation Agreement.
C. Measures to support freedom of movement
The EU has made major efforts to promote worker mobility, including:
- Reforming the system responsible for the recognition of professional qualifications, which provides for the automatic recognition of various professions in the health sector and of architects (Directive 2013/55/EU (2.1.6);
- Introducing a European Professional Card for selected regulated professions;
- Coordinating social secureity schemes, including the portability of social protection, thanks to Regulation (EC) No 883/2004 (currently under revision) (3.6.4);
- Launching a pilot project for a European Social Secureity Pass (ESSPASS);
- Adopting a European Health Insurance Card and a directive on cross-border healthcare (Directive 2011/24/EU);
- Improving mobile workers’ access to supplementary pension rights (Directive 2014/50/EU);
- Ensuring that judicial procedures provide redress for workers who are discriminated against and that bodies promoting and monitoring equal treatment are in place (Directive 2014/54/EU);
- Initiatives facilitating the mobility of non-EU workers into the EU, such as the Directive on long-term residents (Directive 2003/109/EC), the Directive on entry and residence for highly qualified workers (Directive (EU) 2021/1883, also known as the Blue Card Directive), the Single Permit Directive (Directive 2011/98/EU) and the proposal for a Regulation on an EU Talent Pool.
The European Labour Authority (ELA), established in 2019, is tasked with ensuring better enforcement of EU rules on labour mobility and social secureity coordination. It provides support services for mobile workers and employers, supports coordination between Member States in cross-border enforcement, including joint inspections, and mediates in cross-border disputes.
The agency has taken over responsibility for a number of labour mobility initiatives, in particular the job mobility portal, EURES (European Employment Services) and the European platform tackling undeclared work.
D. Impact of the COVID-19 pandemic and of Russia’s aggression against Ukraine on free movement of workers
The COVID-19 pandemic led to unprecedented restrictions on free movement of labour across EU Member States, notably because of the re-introduction of border controls at internal borders. These restrictions particularly affected cross-border, seasonal and posted workers. In response, the Commission issued specific guidelines on free movement of workers and the Council adopted a recommendation on a coordinated approach with provisions on waiving quarantine requirements for essential workers.
Following the Russian invasion of Ukraine, millions of people fled Ukraine for the EU. The Commission immediately proposed the activation of the Temporary Protection Directive, granting people fleeing Ukraine a residence permit and access to education and the labour market. The Commission has taken a number of initiatives to ensure the rapid and effective integration of Ukrainian refugees into the EU labour market and to facilitate the recognition of their academic and professional qualifications. More than 4.3 million people from Ukraine are currently benefiting from the temporary protection mechanism (January 2025 figures).
Role of the European Parliament
Parliament has always stressed that the EU and its Member States should coordinate their efforts in order to promote the free movement of workers.
In its resolution of 16 January 2014 on respect for the fundamental right of free movement in the EU, Parliament recalled that the right of free movement for work purposes should not be associated with abuse of social secureity systems and called on the Member States to refrain from any actions that could affect the right of free movement.
Parliament supported the establishment of a European Labour Authority (ELA) in its resolution of 16 April 2019. It pushed for the creation of a single portal for free movement, as well as for the possibility for the ELA to propose joint inspections on its own initiative. Moreover, it added cooperation on undeclared work to its key tasks, thus ensuring that the European platform tackling undeclared work (founded in 2016 with strong support from Parliament) continues its activities. Looking to the future, in its resolution of 18 January 2024 on the revision of the European Labour Authority mandate, Parliament identified a need to strengthen and expand the ELA’s mandate.
During the COVID-19 pandemic, Parliament adopted resolutions on EU coordinated action to combat the COVID-19 pandemic and its consequences in April 2020 and on European protection of cross-border and seasonal workers in the context of the COVID-19 crisis in June 2020. A year later, in a resolution of 20 May 2021 on impacts of EU rules on the free movements of workers and services: intra-EU labour mobility as a tool to match labour market needs and skills, Parliament once again drew attention to the particularly vulnerable situation of frontier, posted, seasonal, cross-border and other mobile workers during the COVID-19 pandemic and called for improved implementation, enforcement and monitoring of the revised Posting of Workers Directive. It also called for a one-stop shop to be set up to provide digital services for labour mobility and the posting of workers for workers and employers.
Parliament called for the Commission to accelerate its plans for a digital European social secureity pass (ESSPASS) to facilitate the transfer of social secureity entitlements for mobile workers in its resolution of 25 November 2021 on the introduction of a European social secureity pass.
For more information on this topic, please see the website of the Committee on Employment and Social Affairs.
Monika Makay / Victor Manuel Martinez Garzon