University of Szeged Faculty of Law

Free movement of persons in EU

Prof: Josef Hajdu Student: Diana Onita Faculty of Law 3rd year

Szeged 2009

Introduction
European social law is constituted of legal rules adopted by the European organisms referring to the work and social relations. Social politics represent an important part of the European construction, because it pursues improvement of the level of employment, employment conditions and social security. Many of the laws, and charters that were adopted by the European Union, talk about the social progress, providing better living conditions, raising the standard of living, ensuring jobs and protecting the fundamental human right. Examples of this kind of documents that are adopted by the European Union are: The fundamental rights that were consecrated by the International Organization of Labor starting with the declaration from 1948, United Nations Organizations Charter, the Universal Declaration of Human Rights (adopted on the 10th of December 1948). The Convention from Geneva 1951, in art 17 regarding the refugees states that: the signing states will grant, to any refugee that is established legally on one of the contracting states territory, the most favorable treatment as he/she would be employee1. Many of the European states adopted these conventions and they ratified them in their own law systems, but the need of a closer regional cooperation made them adopt other law too that were applied in all European Union, and so it was created he international law system and the community social law. Community social law is definite as to be that field of law that regulates the exercise of self-employment or employment and its consequences2 Community social law is divided in two: labor law and social security law. The connection between these two is due to social policy that is indivisible. In the literature it is considered that the object of the social law is the rules that governing over employment, performance of work, pay, social security and collective negotiation. The two levels have so many things in common that cannot be separated, so they are merged, forming the social security law. So it can be said that the social law contains rules that govern legal work relations and those rules that make social security. At European level the rules that govern social community law are more than those adopted by the European Council, because the rules that govern social community have the purpose to implement a uniform social policy that represents the consequences of European Union: democracy, respect of the fundamental rights and rule of law3. The laws that are adopted by the European Council are important because they try to make the harmonization of the national laws more effective on the field of social security and they even establish obligations for the member states. But first of all social law is a branch of the national law of the member states, that protect the employee in his relation with the employer and protection that society accords to its members that are confronted with reducing the living founds( sickness, pension).
1 2

Drept social comunitar( Social community law, Ovidiu Tinca, ed.Lumina Lex, Bucharest 2002,p4 www.legalis.ro/drept-social-in-uniunea-europeana Drept social comunitar, idem, p 19

The European Social Security Code signed at 16th of April 1964, follows the improvement of social security systems of the member states of the EU. This treaty is establishing rules for the contracting states about the organization of the social security systems for: case of disease, invalidity, death, oldness, maternity, work accidents and occupational diseases. It also provides for establishing the family benefits and unemployment benefits for people capable and available of work when they cannot find a suitable work. The Cod and the protocol establish a system to verify their application, so the contracting states have to present an annual report about the application of the rules that they ratified in their countries. The European Convention of Social Security and the complementary agree are adopted in 1972 and establish general rules of unilateral coordination of the social securitys systems and the relations between the social security institutions and the procedures that must be followed. The applicable rules are referring to rules that are long-term applicable (invalidity pension, old age pension, pension for work accidents or occupational diseases). This Convention refers to all employees, self-employees and all the persons who benefit from the legislation of social insurance from the contracting state. In order to people be able to move freely within the European Union and European Economic Area there is necessary a social security schemes coordination is necessary, according to article 48 of Treaty of Rome, so people like employees, pensioners, students, self-employed and other categories of persons, have the same social right as in their home country4, if they are from a Member State of the European Union, if not then not to lose the right that one has gained settling in a Member State

Free movement of persons in European Union

1. Right to free movement of people is established in the 3rd title of the 3rd part of the Institution Treaty of the European Community and is called free movement of persons, services and capital Free movement is a right concerned with the quality of being a citizen of EU and citizen of one member state. In the case when a states law allows that a person can have double citizenship, the community citizenship is more important in application of the community law, but it can be limited. Right of free movement refers to employees or non-employees. 2. Right to free movement and voyage for employees is established by art.39 ECT and states the following: - Free movement of employees is assured within the community - It involves the abolition of discrimination based on nationality, between Member States, regarding the place of work, payment and other work conditions.

Social law in the European Union social security co-ordination, Josef Hajdu, ed Jate Press, Szeged 2008,

And has the right to social security and public health: - to respond to work possibilities effectively offered - to move freely on Member States territory on this purpose - to set down in an other Member State to hold a job according to the national law - to stay within a Member State after it held a job. - The dispositions of this article cannot be applied to public administrations jobs. Free movement of employees is a fundamental right which the national courts must defend. Article 40 ECT grants to the Council to adopt rules that are necessary to achieve free movement of employees after consulting the Social and Economic Committee. The rule 1612/68/EEC of 15 October 1968 in its first article is establishing that any person from a Member State is entitled to be employed on another Member States territory having the advantage of the same priority as a citizen of that Member State, without discrimination. Art 3 of the same rule says in which cases its dispositions or the practices of Member States cannot be applied: - those who limit the offer and employment for foreign employees but their national employees dont have the limits - those who want to eliminate the foreign employees from filling a job. European Court says that indiscriminately treatment is applied to foreign persons who want to get a job in a foreign country, which is a Member State in the European Union, and that these persons should enjoy same treatment as the citizens of that Member State. Even though the movement is free it can be limited or restricted, so in some countries they can ask the people, before authorizing to cross the border, the time, purpose and founds that they have. After they are established in another Member State, they can get a residence card that has only declarative right, as the right of free movement is established by ECT. Even if the necessary formalities take a little longer that doesnt mean the employment contract cannot be performed. Social and fiscal advantages are the same as for national employees, but it is important to be mentioned that of this advantages benefit those who actual work, not those too who are going abroad to search for a job. According to the art 59 or the Treaty of Rome, the person can export some benefits ( to take them to another Member State, this is not the case of sickness and maternity benefits, in which case the person is treated as it would be insured in the residence country5 The European Court decided that a migrant employee still has its statute even if he/she stops working on its own decision to continuate their studies.
5

Idem, p 46

Of social advantages benefits the employees family too, financing the childrens studies for example. Other social advantages for foreign employees are granting the minimum necessary for living, pension for disabled persons, allowance for birth, funeral allowance. Granting these benefits is established after the competent authorities verify the documents regarding the status of the employee. 3. Studying in professional schools and rehabilitation centers must be ensured by the Member State as for its own citizens. The E. Court decided that universities cannot be considered professional schools, but universitary studies that prepare a person for a specific work field are considered to be professional forming studies. Any collective or individual conventions that allow any discrimination are void according to art 7, paragraph 4 of the rule nr 1612/68. 4. The right to affiliate to a union and the right to elect and be elected to an administrative job is established by rule nr 1612/68 art 8. To a foreign employee can be denied to apply for an administrative job but in an enterprise he/she can be elected in the representative bodies. 5. Access to housing of foreign employee is established by art 9 of the rule nr 1612/68, including the access to housing in a different Member State. So a foreign employee has the same right to housing, even if he/she is in a foreign country, like a citizen of that country. 6. The employees family has the same rights as the employee to settle in a foreign country, and it is a derivate right from the employees right to do so. Family is considered to be the husband/wife and children under 21 years old, or they are in the care of the worker, and the workers parents that are in his/her care. In 1989 the E Court established that the receiving country cannot apply the national law according to which the employees family should renew the residence card only if they live in a proper house. There is no need for a visa for the employees family only if they dont have the citizenship of a Member State. 7. Right of husband/wife and children under 21 or those who are in the care of the employee and dont have the citizenship of any Member State is established by art 11 of the rule nr 1612/68, and its says that a employees family cannot invoke the art 11 if the employee never used his right to free movement within the Community. Art 11 of the rule 1612/68 states that an employees family cannot use this art to independent voyage because this art about the right to employment in a Member State.

8. Admission to general education and professional forming of a foreign employees children, if they are settled in the Member State in which their parent is working is done under the same conditions like for the citizens of that country. Art 12 of the rule 1612/68 does not defined the term children like art 11, so children are considered to be even if they are above 21 years and they are not in the care of the employee, for example high level students. 9. Access to social benefits by the employees family is granted for: - financing the studies of the children under 21 or that are in the care of the employee - the quality to be in the care of employee does not have to be proved by the fact that the child has no resources to finance itself. - it doesnt matter the citizenship of the husband/wife, the childrens or of the person that is in employees care. - granting a benefit for employees family is not bound by the existence of conventions between the two states. - social benefits are granted to employees family event after the employees death. - to the family of employee cannot be granted other right as are granted for the employees. 10. the right of employee to remain in a state where he/she worked is established by the rule nr 1251/70/EEC of 29 Jun 1970 and according to this the employee has the right to remain in a foreign country if : - in the moment when the employee stop work has the necessary age to have the old age pension, and lived in that state for at least the last 12 months and continuously more than 3 years - the employee that had lived and work more than 2 years in a foreign state but stop working because of a permanent disability, if this disability is due to work accident or professional disease - the employee, after 3 years of work and residence in a state has an other job in an other Member State but is keeping his first residence and is returning to it at least once a week. Continuity of residence is not affected by temporary absences less then 3 months/year. The period when a person is un-employed and absences due to sickness or accidents are considered to be work periods. 11. Collaboration between the Member State and the EU Committee is established in art 13 of rule 1612/68. Central services that are responsible of the free jobs collaborate with each other and with the Committee to realize the common action in the field of employment and for placing workers. European coordination office for compensation jobs and job offers, within the Committee, has the general mission to favor the vacancy and job offers. Advisory Committee assists the EU Committee during the examination of the problems that are revealed in application of the EUT (European Union Treaty). Technical Committee assists the EU Committee by supervising the measures that have technical issues. 6

12. Right to settle within a Member State to carry out economic activities, selfemployed or services is established by art 43 and 49 EUT and refers to physical and moral persons. This involves free access to self-employment of physical persons and usually they benefit the residence permit but it is applied only to traders. A person is considered to be a trades when is self-employed. 13. Moral persons are established by the legislations of every Member State and it about the capacity to sue or be sued on its own and capacity to contract according to its social belief. Activities that can be carried, according to art 43, are self-employed activities that have to qualify 2 conditions: - the activity has to have economical character - and not to be governed by other rule from EUT The physical or moral persons that settle within a Member State are required to apply the national law of that state. 14. Free provision of services is established by art 49, and it is about a temporarily activity but its time has not been determined otherwise it has to make an establishment. 15. Rules applied to pensioners is established by the Councils Directive nr 90/365/EEC from 28 June 1990.According to this article, the Member States grant right to voyage to any person from another state that fulfills the following conditions: - the person should have been before employed or self-employed in a Member State - the person has to have an invalidity, old age, work accident or professional disease pension. - the pension to be high enough not to create obligations to social assistance bodies from the receiving country - the person should have a medical insurance. Along with this person has the right its family to voyage. 16. Right to voyage for students is established by the directive 93/96/EEC from 29 October 1993, and according to this a student has to fulfill the following conditions: - to be admitted as a student in an educational institution - not to have the right for voyage in that state according to an other rule - to have the necessary financial recourses - to have a health insurance

Even though in the European Union we can travel, work, and settle, there are many rules that want to limit this, and it is a normal thing. because it stops overpopulating one country and leaving another without citizens, and it stops the social security of one country to be over solicitant

Bibliography:

1. Drept social comunitar (Social communitary law) Ovidiu Tinca, ed Luminalex, Bucuresti 2002
2.

http://ec.europa.eu/romania/documents/eu_romania/tema _1.pdf

3. www.legalis.ro/drept-social-in-uniunea-europeana 4. http://www.euroavocatura.ro/dictionar/144/Securitate_So ciala