Opinion of the Economic and Social Committee on

- the "Proposal for a European Parliament and Council Regulation amending Council Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community",

- the "Proposal for a European Parliament and Council Directive amending Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families", and

- the "Proposal for a European Parliament and Council Decision establishing an Advisory Committee on freedom of movement and social security for Community workers and amending Council Regulations (EEC) No. 1612/68 and (EEC) No. 1408/71"

(1999/C 169/10)

On 12 November 1998 the Council decided to consult the Economic and Social Committee, under Article 49 of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 8 April 1999. The rapporteur was Mr Vinay.

At its 363rd plenary session (meeting of 28 April 1999), the Economic and Social Committee adopted the following opinion by 89 votes in favour with four abstentions.

1. Introduction

1.1. The Commission proposal behind this opinion is prompted by a basic observation: that one of the purposes of the right to free movement for workers within the Union, as enshrined in Article 48 of the Treaty and implemented since 1968, is to give every European citizen the right to move to any Member State to work or look for work, while guaranteeing full equality of treatment and the complete integration of workers and their families into the host state.

1.2. Full enjoyment of such rights within the EU is currently hindered by rules that are now out-dated: a fact brought to light by a number of Court of Justice rulings. Gaps in the system have also been identified by the Commission's High Level Panel (HLP), set up in 1996 under Simone Veil to pinpoint areas where free movement legislation was lagging behind or lacking.

1.3. The panel's report stressed the need to ensure that the necessary legislative changes reflected not only case-law developments but also political and sociological trends in the EU since 1968.

1.4. Having repeatedly called for an improvement in legislation on the free movement of workers, the EuropeanParliament approved the Commission's proposals on Regulation (EEC) No. 1612/68 and Directive 68/369/EEC(1) back in 1989 and has since continued to push for the legal framework to be strengthened and properly implemented by the Member States.

1.5. Full enjoyment of the right to free movement is all the more important in the light of the guidelines on employment adopted following the Luxembourg European Council in November 1997. In the face of critical levels of unemployment throughout the Union, these emphasized the importance of enhancing the capacity of workers, and the unemployed in particular, to integrate into the labour market. Any obstacles to opportunities for training and experience, not least relating to mobility, must therefore be removed as part of a European strategy for employment.

1.6. In 1997, following the Parliament's lead and with reference to the recommendations of the HLP, the Commission adopted an action plan announcing that it would be proposing legislation to improve conditions for the exercise of the right of free movement. In May 1998, the Committee approved(2) the broad lines of the action plan, while making a few specific recommendations.

1.7. The Commission proposals addressed by the present opinion mirror large chunks of the strategy outlined in the action plan. They amend and update Regulation No. 1612/68 and Directive No. 68/360 while streamlining the institutional side by merging the advisory committees on free movement and social security.

1.8. In more precise terms, the proposals seek to clarify and simplify the rules on right of residence while rationalizing procedures for granting residence permits for EU workers, including those who go to another Member State to seek employment or take vocational training courses.

1.9. They also square existing rules on guaranteed equal treatment for Union citizens with the case-law built up by a large number of Court of Justice rulings.

1.10. The proposals introduce rules designed to safeguard and encourage occupational mobility, enabling workers in any Member State to benefit from employment-related facts or circumstances arising in any other Member State.

1.11. Specific measures have been designed to ensure that workers are not disadvantaged through living in one country and working in another.

1.12. The proposed legislation also extends the rights of workers' family members, with new safeguards for the right to integration and to equal treatment as regards all financial, fiscal, social or cultural benefits, and, in particular, the right to engage in a self employed activity. Spouses of Community citizens also retain their rights in the event of divorce.

1.13. The proposals do away with barriers relating to age and economic status when determining which family members have the right to live with an employed worker.

1.14. A new clause outlaws all forms of discrimination based on race, religion, gender, age, disability or sexual orientation where the right to free movement is exercised.

1.15. Following specific recommendations from the social partners, the existing tripartite advisory committees on free movement and social security will be merged, in order to rationalize and improve their operations.

2. General comments

2.1. The Economic and Social Committee welcomes and endorses the overall package of Commission proposals to amend Council Regulation (EEC) No 1612/68, Directive 68/360/EEC and Council Regulation (EEC) No 1408/71.

2.2. The Committee has already examined and assessed the extensive case-law of the Court of Justice and the High Level Panel (Veil) report. It is also fully aware of the political worth of the Amsterdam Treaty's provision to bolster the right to freedom of movement. As mentioned above, the Committee, has already endorsed the action plan for the free movement of workers, while recommending that greater attention be paid to the various points made in the Veil report.

2.3. The proposals in question are specifically aimed at removing the remaining obstacles to the free movement of employees and their families, particularly regarding their material status in law in any EU state other than their state of origin.

2.3.1. The Committee agrees with the Commission that the proposed revision of measures pertaining to "workers" and their families is consistent with the goal of full exercise of the right of Union citizens to move and reside freely throughout the EU. Having already emphasized this need in the past, the Committee once more urges the Commission to follow up its current proposals with accompanying measures based on Article 8(a) of the Treaty (re-numbered Article 18 by the Amsterdam Treaty) to establish a single legal status for European citizenship and full freedom of movement.

2.4. To be more specific, the Committee backs the proposed revision in its aim to facilitate free movement for job seekers, trainees and people on a series of short-term contracts, to extend and improve the right of residence of family members, dependent or otherwise, and other people who may be dependent or live under the same roof in the Member State of origin, to reinforce equal treatment and equivalence of situations for employment purposes, in both the public and private sectors, to give adequate consideration to the issue of frontier workers, and to simplify administrative procedures that inhibit free movement.

2.5. The Committee reiterates the view expressed in its last opinion, that no single market worthy of the name should pose restrictions on the free movement of workers. This is allthe more essential in the light of the need to enhance employability, as mentioned in the Luxembourg European Council's employment guidelines. The greater availability of opportunities for training, free of national red tape, represents a fundamental tool for matching labour supply and demand more closely, and for enabling the European workforce to retrain on an ongoing and comprehensive basis, essential in a period of constant technological change.

2.6. Although the proposals considered in this opinion are definitely a major step forward, they do not totally remove all the practical barriers to transnational mobility. For instance, certain fiscal aspects and a number of points relating to social protection and supplementary pensions in particular must be tackled once and for all. The Committee is convinced of the need to draw up a legal framework to coordinate these matters at EU level and, therefore, reiterates its call for a single European commissioner to be appointed to coordinate all free movement issues.

2.7. The Committee echoes its previous opinion in reminding the Commission that the issue of the rights and protection of third country workers, legally resident in any Member State, should also be taken into account within this context.

2.8. The Committee recommends that the Commission work together with the other European institutions to encourage and supervise the rapid and full implementation of the new measures in all the Member States. The effective implementation of the new laws should be backed up using existing information tools and by means of a specific campaign. Another important dimension is the need to encourage authorities to pool information and to address specific urgent issues jointly, by setting up contact points for instance.

2.9. The Committee has frequently pointed out that assisting and defending the rights of employees in the various Member States above and beyond the planned advisory committees is a matter of significant concern to the social partners, particularly when work and employment issues are at stake. Against that backdrop, they should be encouraged to participate on a regular basis in Community programmes and initiatives directly connected with the future application of the new laws in question.

2.10. The Committee agrees with the decision to use the Article 189b procedure for the adoption of these measures, as already recommended for other related areas.

3. Specific comments

3.1. Proposal for a European Parliament and Council Regulation amending Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community - 98/0229 (COD)

3.1.1. The stronger, clearer and more direct rewording of Article 1(a), defined as the non-discrimination clause, is in line with the Treaty of Amsterdam and buttresses free movement with fundamental principles for the safeguard of human rights, which the Commission had already incorporated in its action plan to combat racism. The Committee is fully behind the Commission's move.

3.1.2. The Committee takes this opportunity to call for the term "migrant worker" to be replaced in future by that of "Community worker".

3.1.3. As in previous opinions, the Committee approves of the changes to Article 1 regarding the affirmation of the right to free movement of job seekers and trainees. It also welcomes the new second paragraph to Article 5, providing for access to training opportunities for people seeking employment in other Member States. The Committee hopes that the recent Council agreement to promote "European pathways"(3) will give greater freedom of movement to trainees and apprentices.

3.1.3.1. The Committee would again underline the need to extend and reinforce the Eures network, in both public and private sectors, and to generate synergies between Eures, Interreg and other Community programmes in order to provide an efficient interface between cross-border training projects and the European labour market.

3.1.4. The changes to Article 7 on the assimilation of the material rights of workers exercising their right to free movement with those of national workers, with particular emphasis on conditions of employment and work, promotion, health and safety, training and education and financial, fiscal, social, cultural and other advantages, and to Article 8, on public office, also constitute a major step forward.

3.1.5. If implemented assiduously, the amendments to Article 7 regarding the equivalence of situations for professional purposes will significantly reduce forms of discrimination that persist, particularly in the public sector. However, as the Commission itself points out, the directives on this subject have, up to now, principally made an impact on the regulated professions and the recognition of certain qualifications and diplomas.

3.1.5.1. The question of employees and non-regulated professionals gaining recognition for professional qualifications acquired in the private sector is still unresolved. The Commission must develop further initiatives on this matter, but room can already be made for a relevant and proactive contribution from the social partners and collective bargaining.

3.1.6. The proposals to establish individual direct rights of family members, set out in amended Articles 10, 11 and 12 on legal certainty, the right to engage in self-employed and other economic activity, access to training and education, and the retention of independent rights of residence, match the hopes and demands expressed in both the Veil report and the Committee's last opinion.

3.1.6.1. There is some confusion, however, on the criteria for continued independent right of residence, and the right to take up an economic activity, in the event of divorce. Article 10 (4) states that family members, who are not nationals of a Member State, retain the right of residence even if the marriage is dissolved, on condition that they have lived in the host country for three consecutive years. The reason for this time-based condition is unclear. More unclear still is the requirement, in amended Article 11, that, in the event of divorce, any family member may take up any activity as an employed or self-employed person as long as they have lived in the territory for a minimum of five consecutive years. Divorced family members should be given the opportunity to support themselves and any other family members for whom they are responsible by engaging in employed or self-employed work.

3.1.7. The Committee has frequently drawn attention to the problem of frontier workers. The amendments to Article 7(a) reinforce the legal security of such workers. Nevertheless, the Committee would point out that a number of issues still require definitive or satisfactory answers, and it calls on the Commission to take action to identify and clarify all outstanding questions, whether or not they are covered by the present regulation, starting with tax and social security, on the basis of the Veil and European Parliament(4) reports.

3.1.7.1. The recent agreement with Switzerland is welcome but the critical positions in the Principality of Monaco, San Marino and Andorra are still unresolved.

3.1.7.2. In view of the major implications for central and eastern European countries, especially those covered by association agreements, rules on movements of workers will clearly have to be drafted for inclusion in the relevant agreements and treaties.

3.1.7.3. Lastly, the Committee emphasizes the importance of creating the right climate in border regions for social dialogue to have a positive input regarding job growth policies, spatial planning and the implementation of standards, beyond the usual bounds of collective bargaining policy.

3.2. Proposal for a European Parliament and Council Directive amending Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families - 98/0230 (COD)

3.2.1. The amendments to Regulation (EEC) No. 1612/68 examined thus far would not be fully effective or operable unless accompanied by the approval of the proposed amendments to Directive 68/360/EEC.

3.2.2. On movement and right of residence, above and beyond the provisions on the main points, the importance of making a strong stand against the red tape that complicates and thus hinders exercise of the right to free movement has been pointed out time and again, not least in previous Committee opinions.

3.2.3. The Committee therefore welcomes the accompanying measures to facilitate family reunification and the independent right of residence for family members, with the exception of certain points raised in the specific comments on the amendments to Regulation 1612/68.

3.2.4. The perennial problem persists, however, of the visa requirement throughout the Union, even for short journeys, for third country nationals, including the family members of Union citizens, legally resident in a Member State. This issue has already been raised in the Veil Report and previous Committee opinions(5).

3.2.5. The proposal to recognize the right to cumulate periods of work for the purposes of claiming right of residence (Art.6(3)(2)), originates from a major point in the Veil Report, which emphasized the importance of not eroding the rights of workers who have built up the requisite period of work within a reasonable amount of time, though with interruptions. The proposal takes the suggestion on board but its wording is vague. It would be clearer to state simply that once they had worked the necessary time, as indicated in the document, the above workers would acquire the right to be issued with a residence permit; providing, depending on their circumstances, they did not already belong to one of the various categories applying to employed or unemployed workers who are legitimately present on the territory.

3.2.6. The proposed right of residence for job seekers from other Member States, for automatically renewable periods of at least six months, and residence permits for trainees, are an essential extension of the right to free movement.

3.2.7. The proposed bolstering of the right of residence and streamlining of administrative procedures are considered useful and timely. In the Committee's view, the extension and coming of age of the legal concept of European citizenship, exemplified by the present proposal, must be accompanied by a widespread growth in awareness and practical ease of its day-to-day application. Even the most flawless laws fail if they do not translate easily and naturally into the practical experience of the men and women they are written for.

3.3. Proposal for a European Parliament and Council Decision establishing an Advisory Committee on freedom of movement and social security for Community workers and amending Council Regulations (EEC) No. 1612/68 and (EEC) No. 1408/71

3.3.1. In keeping with its earlier opinion and the request made at the time by the social partners, the Committee endorses the Commission's proposal to establish an advisory committee on free movement and social security, to collate and rationalize existing structures. It stresses the need for the new committee to be given full and immediate operational capacity and to act as a permanent and effective interface between the social partners and the Commission.

3.3.2. The Committee shares the Commission's belief that this joint structure marks a major step towards a global approach encompassing all areas connected with the right to freedom of movement.

3.3.3. The new Advisory Committee must be sufficiently representative of the complex labour market it will be called upon to examine and assess; it must plan its activities so as to boost its capacity to address the various issues from a distinctly European standpoint. It must also be free to act with the necessary flexibility. To that end, further streamlining of the committee may be beneficial, though clearly it must not be made any less representative.

Brussels, 28 April 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) Parliament opinion of 14 February 1989 (A3-0013/90).

(2) OJ C 235, 27.7.1998.

(3) Council Decision of 21 December 1998, OJ L 17, 22.1.1999. See also ESC opinion, OJ C 214, 10.7.1998.

(4) Resolution on the situation of frontier workers in the European Union - Rapporteur: Anne Van Lancker - PE 225.852/fin., 6 May 1998.

(5) ESC opinions: OJ C 153, 28.5.1996; OJ C 157, 25.5.1998; OJ C 235, 27.7.1998.