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European regulations on workers of member states.

1. Background

The Treaty of Rome, which founded the European Economic Community, set out certain objectives and established Community Institutions necessary to attain them. One of these objectives is the free movement of workers. Article 51 of the Treaty provides for the adoption of social security measures necessary to realize this objective. The first such measure, Regulation No. 3, providing rights for employed migrant workers, pensioners and their dependants, was adopted by the Community in 1958. In 1971, this was replaced by the wider-ranging Regulation No. 1408/71, which has since been progressively amended and updated. The Regulation now covers employed and self-employed persons and members of their families. It does not cover the non-active i.e. those who have never worked and are not already covered as a member of the family of an employed or self-employed person. The aim of the regulations is to protect the social security cover, including health care, of those covered by the Regulation when they move around the European Economic Area. The Regulations are based on four main principles to achieve that goal:

1. Discrimination on grounds of nationality (Discrimination on grounds of nationality is prohibited.) Member States must not discriminate against the nationals of other Member States.

2. The "applicable legislation" principle. (A person is subject at any given time to the legislation of one Member State only (the "applicable legislation" principle).

The general principle is that a person is subject to the legislation of one Member State at any one time. Workers are normally subject to the legislation of the State in which they are working, regardless of their place of residence or the location of any employer. There are a number of exceptions to this rule, the best known of which relates to the posting of workers abroad. The legislation to which a person is subject is applicable both for the levy of contributions and for the payment of benefit. The purpose of having a legislation applicable is to avoid conflicts of law, which could arise from the application of the different criteria for coverage under the national social security schemes.

3. The "aggregation" principle. (Entitlements built up in one Member State should be recognized when calculating benefit entitlement in another (the "aggregation" principle). Entitlement to certain benefits in Member States is subject to completion of a qualifying period of insurance, employment or residence. Situations could arise when a migrant worker had worked in a number of Member States without acquiring entitlement to benefit in any of them. Such a situation would hamper the free movement of workers enshrined in the EEC Treaty. In order to remedy such a situation, Regulation (EEC) No. 1408/71 contains a number of provisions providing for the aggregation of periods of insurance or residence in Member States in order to acquire the right to benefits. There are separate provisions relating to aggregation covering the various benefits.

4. The "export" principle. (Benefits are payable outside the national territory (the "export principle"). The Regulations provide that Invalidity, Old Age, Survivors' Pension and pensions for accidents at work and occupational diseases which have been acquired under the legislation of a Member State must be paid to the person concerned even if he or she resides in another Member State and cannot be subject to any reduction or modification. Liability to export other benefits is more limited e.g. unemployment benefits are only exportable in very specific circumstances and for a maximum of three months. Certain non-contributory benefits are not exportable

2. EU workers

Every national of an EU Member State has in general the right to work in another Member State (Article 39 EC and Regulation 1612/ 68 on freedom of movement for workers within the Community). This right is one of the most important rights under Community law for individuals and an essential element of the citizenship of the Union. The term "worker" was not defined in the Treaty, but has been interpreted by the Court as covering any person who (1) undertakes genuine and effective work (2) under the direction of someone else (3) for which he is paid. A migrant worker must be treated in the same way as nationals of the host country in relation to access to employment, working conditions as well as tax and social advantages. (1) Civil servants and employees in the public sector are workers in the sense of Article 39 EC; the rules on free movement of workers in principle apply also to them. However, there is one exception and some specific aspects: (1) Member States are allowed to restrict certain posts to their own nationals (Article 39 (4) EC); (2) In several Member States rules exist which are very specific to public sector employment (e.g. recognition of professional experience and seniority acquired in another Member State, language requirements, particular recruitment requirements) and therefore may cause additional problems of discrimination which do not occur in the same way in the private sector. According to Article 39 (4) EC, free movement of workers does not apply to employment in the public sector. However, this derogation has been interpreted in a very restrictive way by the European Court of Justice and therefore Member States are only allowed to restrict public sector posts to their nationals if they involve the exercise of public authority and the responsibility for safeguarding the general interest of the State. These criteria must be evaluated on a case-by-case approach in view of the nature of the tasks and responsibilities covered by the post in question.

Recruitment procedures must therefore be open to EU citizens unless the posts accessible via that procedure fulfil the criteria men tioned above. The Commission considers that the derogation in Article 39 (4) EC covers in particular specific functions of the State and similar bodies such as the armed forces, the police or other forces of the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. However, not all posts in these fields imply the exercise of public authority and responsibility for safeguarding the general interests of the State, for example administrative tasks, technical consultation, maintenance. These posts may therefore not be restricted to nationals of the host Member States. (2)

One of the specific issues that migrant workers often face when acceding to the public sector is the recognition of their professional experience and seniority acquired in another Member State. In several Member States professional experience and seniority play a role in the recruitment procedure (e.g. professional experience or seniority is either a formal condition for access to a recruitment competition or additional merit points are awarded for it during such a procedure which places candidates at a higher position on the final list of successful candidates). In many Member States working conditions (professional advantages like e.g. salary; grade) are determined on the basis of previous professional experience and seniority. If the professional experience and seniority acquired in another Member State is not correctly taken into account these workers consequently either have no or less favorable access to the other Member State's public sector or must restart their career at a lower level. Following the Court's case law, previous periods of comparable employment acquired in another Member State must be taken into account by Member States' administrations for the purposes of access to their own public sector and for determining professional advantages (e.g. salary; grade) in the same way as applies to experience acquired in their own system. (3)

Principles of moving workers

Though the social security systems of the countries of the European Union (EU) are coordinated, social benefits and the conditions under which they are granted are determined at national level, depending on the traditions and culture of each country. However, European law lays down rules and principles to guarantee the right of free movement of persons in the EU. This Regulation applies to all nationals of an EU country who are or who have been covered by the social security legislation of one of those countries, as well as to the members of their family and their survivors. According to the principle of equal treatment, nationals of an EU country and persons residing in that country without being nationals of it are equal in terms of the rights and obligations provided for by the national legislation.

The provisions of this Regulation apply to all the traditional branches of social security: sickness, maternity, accidents at work, occupational diseases, invalidity benefits, unemployment benefits, family benefits, retirement and pre-retirement benefits, death grants. The Regulation also recognizes the principle of the aggregation of periods, pursuant to which periods of insurance, employment or residence in an EU country are taken into account in all the other EU countries. This means that the acquisition of the right to benefits in a State must take account of periods of insurance, employment, selfemployment or residence in another EU Member State.

The insured person is subject to the legislation of a single Member State only. The Member State concerned is the one in which he or she pursues a gainful activity. Particular rules are provided for certain categories of workers, such as civil servants who are subject to the legislation of the Member State to which the administration employing them is subject, and workers who are employed or selfemployed in several EU countries. Frontier workers are affiliated to the body of the country in which they work, while residing in another EU country and having access to health care in both States. Special provisions are provided concerning benefits in kind intended for members of their family. Persons staying in an EU country other than their country of residence, in particular during holidays, must be able to receive necessary medical benefits during their stay. It is the legislation of the State in which they are staying which determines the financial conditions for the award of the benefits, but the costs are borne/reimbursed by the social security body of the country of origin.

This right is certified by the European Health Insurance Card, which every insured person may request from his/her social security body. Members of the retired worker's family are entitled to certain benefits in kind, even if they reside in a Member State other than that of the holder of the pension. When retired frontier workers are in question, this category of insured person can receive benefits in the last State in which they worked if it concerns the continuation of medical treatment which began in that State. They, as well as their families, can continue to receive medical treatment in the last Member State in which they worked: without restriction if they have pursued a frontier activity for two years during the five years preceding the retirement or invalidity; provided the Member States concerned have opted for this.

Persons staying or residing in a Member State other than that in which they are affiliated to social security nevertheless benefit from the scheme covering accidents at work and occupational diseases. These benefits are provided by the institution of the place of stay or residence in accordance with the legislation, which is applicable there. The institution of the State in which the worker is affiliated bears the costs of transporting him/her to his/her place of residence. The institution must have previously reached agreement on this form of transport, except in the case of frontier workers. When an insured person or member of his/her family dies in a Member State other than the competent Member State, death is deemed to have occurred in the competent Member State. Hence the competent institution must provide the death grants payable under the legislation it applies even if the person entitled resides in another Member State.

As regards invalidity benefits, Member States may decide to determine the amount of the benefits on the basis of the duration of periods of insurance or residence (see Annex VI to the Regulation). All Member States in which a person has been insured must pay an old-age pension when the insured person reaches the age of retirement. The calculation of the amount of the benefits takes into consideration all the periods completed in another Member State.

The Regulation also contains rules concerning the way in which the competent institutions calculate benefits and establishes rules to prevent overlapping. If a worker is entitled to benefits in several EU countries, the total amount of the benefits must not be less than the minimum provided for in the legislation of his/her Member State of residence, if the State of residence has a minimum pension scheme. Otherwise, the institution of the Member State of residence must pay compensation. As regards unemployment benefits, the competent institution of a Member State must take into account the periods of insurance, employment or self-employment completed under the legislation of any other Member State as though they were completed under the legislation it applies.

An unemployed person may move to another Member State in order to seek work while retaining entitlement to benefits for three months. The competent services or institutions may extend this period up to a maximum of six months. If the unemployed person does not return on or before the expiry of this period he/she loses all entitlement to benefits. Beneficiaries of statutory pre-retirement schemes may receive their benefits and be covered for their health care and family benefits in another European country. Based on the principle of equal treatment, they must have the same rights and obligations as other citizens of the country.

Since statutory pre-retirement schemes exist only in a very small number of Member States, this Regulation excludes the rule concerning the aggregation of periods for the acquisition of entitlement to pre-retirement benefits. A person is entitled to family benefits in a competent Member State, including for members of his/her family residing in another Member State, as if they were residing in the former Member State. In the case of overlapping benefits, family benefits are provided in line with the priority rules set out. Contrary to the general rule, these benefits are not exportable if they are listed in Annex X and if they fulfil certain criteria. Besides, these criteria apply to all Member States, with the result that similar benefits will be treated in the same way.

This Regulation reinforces the principle of good administration. The institutions must respond to all queries within a reasonable period of time and must in this connection provide the persons concerned with any information required for exercising the rights conferred on them by this Regulation. Besides, in the event of difficulties in the interpretation or application of this Regulation, the institutions involved must contact one another in order to find a solution for the person concerned. The Regulation provides for mechanisms designed to guarantee smooth functioning and enhanced cooperation between Member States and institutions in the field of social security, notably: an Administrative Commission, responsible for handling any question of interpretation arising from the provisions of this Regulation or any accord or agreement concluded in the framework of the Regulation; a Technical Commission within the Administrative Commission, responsible for assembling technical documents, studies and the associated activities; an Audit Board which will establish the average costs for reimbursement of healthcare costs in Member States; an Advisory Committee, responsible for preparing opinions and proposals for the Administrative Commission.

Free movement of workers

Free movement of workers is another fundamental and long standing principle of EU law. Basically, the Treaty lays down that any discrimination based on nationality between workers of the Member States, in relation to employment, pay, and other conditions of work and employment is prohibited. In practice this means that a worker in a Member State has the right to accept offers of employment in another Member State; to move freely within the EU; to stay in a Member State for work purposes; to remain in the territory of another Member State after having been employed there; under Regulation 1612/68, directly discriminatory national laws, regulations, administrative actions or practices are prohibited; a directly discriminatory measure limits, for example; applications for employment; offers of employment.

The right of other EU nationals to take up employment by subjecting them to conditions which do not apply to host nationals. Indirectly discriminatory national laws, regulations, administrative actions or practices are also prohibited under EU law. Indirectly discriminatory measures operate irrespective of the nationality of the worker, but have as their exclusive or principal aim the exclusion of non-nationals. One of the contentious areas in this field, is whether a linguistic requirement is an indirectly discriminatory requirement. It has the potential to be so because in general, more non-nationals will be unable to speak the required national language than nationals. The rough rule of thumb that appears to have come out of the case law is that language requirements can not go beyond what is necessary to meet the requirements of the job.

So if you are applying to teach Irish then you obviously need to be able to speak Irish, but if you are applying to be a dentist then trying to impose a language requirement becomes less justifiable, particularly if you are moving to an area in which a number of nationals from your country actually live. Prior to the enlargement of the EU from 15 to 25 countries, there was concern in the existing member states over the need to impose quotas on workers from the new member States to limit social, economic and employment disruption caused by a feared flood of economic migrants from the new member states into the old.

As this is a sensitive issue, the EU negotiated transitional arrangements of a flexible nature with the Central and East European Countries to allow the existing member states to limit movements of workers from the new member states for a period of up to seven years after enlargement. However, once that transitional period is up, then the ordinary free movement of workers rules will apply to the new member states. Under Article 4 of Regulation 1612/68, it is prohibited to impose quotas on other workers from other EU countries in the way that you would on non-EU workers. National rules that limit the proportion of positions that other EU nationals may take up are prohibited under EU law. So once the transitional arrangements have finished, then this principle will apply, subject to the ordinary limitations justified on the grounds of public policy, public security or public health.

NOTES

(1.) More information on free movement of workers can be found on the Homepage of the Commission DG Employment, Social Affairs and Equal Opportunities:

http://ec.europa.eu/employment_social/free_movement/index_en.htm and in the Communication from the Commission "Free movement of workers achieving the full benefits and potential" COM(2002) 694 final: http://ec.europa.eu/employment_social/free_movement/docs_en.htm

(2.) More detailed information is to be found in chapter 5.2 of the Communication from the Commission "Free movement of workers-achieving the full benefits and potential" (COM(2002) 694).

(3.) More detailed information is to be found in chapter 5.3 of the Communication from the Commission "Free movement of workers-achieving the full benefits and potential" (COM(2002) 694).

MIHNEA CLAUDIU DRUMEA

mikedrm@yahoo. com

Spiru Haret University, Constantza
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Author:Drumea, Mihnea Claudiu
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4E
Date:Jan 1, 2012
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