TABLE OF CONTENTS

COMMISSION STAFF WORKING DOCUMENT.................................................................. 4

1........... INTRODUCTION........................................................................................................ 4

1.1........ The scope of the initiative................................................................................................ 4

1.2........ Policy context................................................................................................................. 5

2........... PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES....... 6

2.1........ The Impact Assessment Steering Committee................................................................... 6

2.2........ Advice from independent experts.................................................................................... 7

2.3........ Public consultation.......................................................................................................... 7

2.4........ Discussion within the committees on free movement of workers....................................... 8

3........... PROBLEM DEFINITION............................................................................................. 8

3.1........ The state of play............................................................................................................. 8

3.1.1..... EU-level legislation and protection................................................................................... 8

3.1.2..... The measures in place in the Member States.................................................................... 9

3.1.3..... Statistics on mobility..................................................................................................... 12

3.2........ The problems............................................................................................................... 14

3.2.1..... Non-compliance with EU law and their effects on EU migrant workers.......................... 18

3.2.2..... Non-compliance by employers and their effects on EU migrant workers......................... 21

3.2.3..... Insufficient capacity/ability of EU migrant workers to use their rights............................... 21

3.3........ Causes and drivers....................................................................................................... 23

3.3.1..... Unawareness:............................................................................................................... 23

3.3.2..... Lack of understanding of EU law and lack of legal certainty:.......................................... 23

3.3.3..... Insufficient support to EU migrant workers to exercise their rights.................................. 24

3.3.4..... Protectionism and unwillingness to comply..................................................................... 24

3.4........ Who is affected and how.............................................................................................. 24

3.5........ 3.5 Baseline scenario and the need for intervention........................................................ 25

3.6........ 3.6 The legal basis, subsidiarity, proportionality and fundamental rights........................... 27

4........... POLICY OBJECTIVES.............................................................................................. 27

4.1........ General, specific and operational objectives of the initiative............................................ 27

4.2........ Are these objectives consistent with other EU policies?.................................................. 28

5........... DESCRIPTION OF POLICY OPTIONS................................................................... 28

5.1........ Option 1: No further action at EU level.......................................................................... 28

5.2........ Option 2: Common guidance documents....................................................................... 29

5.3........ Option 3: Commission's Recommendation to Member States......................................... 29

5.4........ Option 4: Directive introducing support measures for EU migrant workers

5.5........ Option 5: Directive introducing an enhanced protection environment for EU migrant workers 30

5.6........ Discarded options......................................................................................................... 31

6........... ANALYSIS OF IMPACTS......................................................................................... 32

6.1........ Policy option 1: No further action at EU level................................................................ 32

6.2........ Policy option 2: Guidance documents............................................................................ 32

6.3........ Policy option 3: Recommendation................................................................................. 34

6.4........ Policy option 4: directive introducing support measures for EU migrant workers............. 34

6.5........ Policy option 5: directive introducing an enhanced protection environment for EU migrant workers 39

7........... COMPARISON OF OPTIONS.................................................................................. 42

8........... MONITORING AND EVALUATION....................................................................... 46

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

Accompanying the document

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers

1. INTRODUCTION

1.1. The scope of the initiative

The freedom of movement for workers is one of the four freedoms on which the Single Market is based, along with the free movement of goods, services and capital. It is enshrined in article 45 TFEU.

This provision has been developed in secondary law through Regulation 492/2011[1] (former Regulation 1612/68[2]). Other legislative acts having an impact on the free movement of workers have been adopted at EU level, such as the residence directive[3], the directive on the recognition of professional qualifications[4], the provisions on social security[5] or the directive on supplementary pension rights[6]. However, these provisions concern not only workers, but also other categories of mobile citizens. The present initiative focuses on the enforcement of Regulation 492/2011, as it is the only legal instrument in force at EU level which exclusively concerns EU migrant workers and members of their family.

This initiative does not concern posted workers, as different a legal basis applies. Article 45 TFEU grants EU citizens the right to freely work in another country as an individual right to the workers. The situation of posted workers is linked to the freedom to provide services (article 56 TFEU) which includes the right for a service provider established in a Member State to temporarily post its workers to another Member State in order to provide a service there. Both are essential elements of the internal market and as such core values of the European Union. However, there is a major difference between the two situations: posted workers do not directly enter the labour market of a Member State while migrant workers do.

The freedom of movement for workers entails the right of EU citizens who move to another Member State for employment purposes not to be discriminated against on the basis of their nationality as regards[7]:

- access to employment (with very limited exceptions, including restrictions transitionally imposed on citizens from new Member States as is currently the case with Bulgaria and Romania);

- conditions of employment;

- access to social and tax advantages (for instance, minimum subsistence payments, study grants, transport fares reductions, etc);

- membership of trade unions;

- access to training;

- access to housing;

- access to education for children.

EU rules on free movement of workers prohibit not only overt discriminations by reason of nationality but also all covert forms of discrimination which may lead to the same result. Conditions imposed by national law must be regarded as indirectly discriminatory if they affect migrant workers more than national workers and if there is a risk that they will place the former at a disadvantage. Examples of indirect discriminations are: residence conditions, refusal to take into consideration periods of employment in the public service of other Member States. Indirect discriminations may only be accepted if they are justified by objective considerations, independent of the nationality of the worker, and if they are proportionate to the aim pursued.

This initiative does not intend to create new rights for EU migrant workers, but to introduce mechanisms to make the current rights more effective in practice.

This initiative concerns exclusively the rights of EU migrant workers when moving within the European Union[8] and the members of their families. It does not concern issues related to migration of third-country nationals into the European Union or their mobility within the European Union.

1.2. Policy context

The Single Market is a cornerstone of Europe’s integration and a key element to attain sustainable growth. Still, it has not yet fulfilled all its potential. Achieving a fully-fledged Single Market is one of the current priorities for the Commission.

The 2010 Monti Report to President Barroso "A new strategy for the Single Market" draws a map of the main challenges facing a relaunch of the Single Market. As far as workers are concerned, the report underlines that while freedom of movement of workers is overall a success from a legal point of view, from an economic and political angle it is fraught by two paradoxes. First, it is the most contested and at the same time the least used of the four freedoms. Second, freedom of movement of workers faces a lower number of legal obstacles than the other three economic freedoms, but these obstacles are the hardest to overcome.

President Barroso's Political guidelines for the 2010-2014 Commission stress the need to ensure that the rights of European citizens are real; citizens should not find that they still face obstacles when they move across borders within the European Union[9]. In 2010 the Commission adopted a first EU Citizenship Report identifying obstacles to the full enjoyment by citizens of their rights and proposing 25 actions to remove them[10]. The gap between the rights that EU citizens have in theory and what happens in practice has been also underlined in several reports from other institutions and, increasingly, there is a call upon the European Union to act in this regard[11]. The year 2013 has been chosen to be the European Year of Citizens. It will focus on citizens' rights and on EU action ensuring that these rights are effectively enforced for the benefit of citizens and the EU as a whole.

The objective of the Europe 2020 strategy is to attain a smart, sustainable and inclusive growth. This calls for the European Union to facilitate and promote intra-EU labour mobility and to encourage more use of free movement rights. Workers' mobility is considered to be an important way to address unemployment and imbalances across labour markets. Free movement brings benefits to both individuals and receiving countries: according to recent research[12] for instance, mobility of EU-12 workers seem to have played a positive role in the economy of receiving countries, contributing to the skill mix, and working in sectors and occupations where job shortages needed to be filled.

The Commission announced in its Communication “Reaffirming the free movement of workers: rights and major developments” of 2010[13] that it would explore how to promote and enhance mechanisms for the effective implementation of the principle of equal treatment for EU workers and members of their families exercising their right to free movement. In the recently adopted communication "Towards a job-rich recovery", the Commission underlined the need to support a better functioning of the EU labour market and announced the presentation of a legislative proposal by the end of 2012 in order to support mobile workers in the exercise of rights derived from the Treaty and Regulation 492/2011[14].

The present initiative responds to these concerns and policy recommendations. It intends to bring a strong contribution to making the rights of migrant workers a reality.

2. PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES

2.1. The Impact Assessment Steering Committee

An Impact Assessment Steering Committee was set up, including representatives of the following Commission’s services: Legal Service, Secretariat General, Internal Market and Services, Education and Culture, Taxation and Customs, Enterprises, Health and Consumers, Communication, Justice and Research and Innovation DGs.

The IASG met five times between May 2011 and April 2012.

2.2. Advice from independent experts

A study was launched with the purpose of supporting the Impact Assessment. It was concluded in April 2012[15].

The network of independent experts in the field of free movement of workers that supports the activities of DG Employment, Social Affairs and Inclusion annually reports on the legal situation related to free movement of workers in the European Union[16]. Beyond this regular reporting, the network has provided two specific reports on the application of EU rules in the field. The first report[17], finalised in January 2011, focused on the existing legal framework in each Member State as regards the right to free movement of workers and the guarantees and supporting measures they offer to EU workers to exercise their rights. The second one[18], submitted in October 2011, presented an overview of the main problems related to the application of the rules on free movement of workers that had been identified in each Member State.

2.3. Public consultation

A public consultation (see annex 6 and 7) was carried out from June to August 2011. Citizens, national authorities, labour unions, employers’ organisations, and associations (NGOs, associations of independent professionals, etc.) gave their views on the main problems related to the application of the rules on free movement of workers, on the current level of protection of workers and on the need for the EU to act in order to help workers fully enjoy their rights.

A total of 243 replies were received, of which 169 were from citizens and 74 from organisations, including national authorities. Among organisations, trade unions were the most active in providing contributions (27% of the respondents), followed by NGOs (17%), national authorities (15%) and employers' organisations (12%).

The majority of respondents agreed that EU workers should be better protected against discrimination on the grounds of nationality. However, views differed considerably as regards the way to achieve a strengthened protection. Adoption of EU legislation was stated as the most important action among the respondents from trade unions, NGOs, private companies, regional and local authorities and citizens. National authorities seemed to be divided in their views, while employers clearly indicated that awareness-raising would be more important than adopting new legislation. Setting up contact points or structures in the Member States was seen as an important measure by all respondents except employers’ organisations. Exchanges of practice between EU countries was also considered an important tool, while supporting actions by organisations was upheld by non-profit organisations, labour unions, private companies and regional authorities.

A summary of the responses received is included in annexes 7 and 8.

2.4. Discussion within the committees on free movement of workers

In accordance with the provisions on Regulation 492/2011, there are currently two committees that deal with questions related to the free movement of workers, the Technical committee and the Advisory committee. The Technical committee is composed of representatives of Member States. The Advisory committee is composed of representatives of Member States and representatives of social partners both at national and at European level.

Barriers to free movement of workers, problems of discrimination on the grounds of nationality and the need to better enforce the current EU rules were discussed at four meetings of the Advisory committee between October 2010 and March 2012. The members of the Advisory committee were further asked to reply to a questionnaire established by the Commission on the actions undertaken at national level in order to inform, assist, support and protect EU workers, on the main problems related to the implementation of Regulation 492/2011 and on the need to take further action at EU level[19].

The members of the committee acknowledged the importance of the real and effective application of existing rights .Views diverge however as to the possible answers and remedies to this need, from awareness raising activities to stronger enforcement of the rules and better access to information for EU migrant workers.

3. PROBLEM DEFINITION

3.1. The state of play

3.1.1. EU-level legislation and protection

The freedom of movement for workers has existed for more than 40 years. It provides for a set of important and strong rights conferred to EU citizens and members of their families who move to another Member State to work or to search work (see section 1.1.).

The Court of Justice has provided important guidance on the interpretation of the provisions on free movement of workers, in particular on general concepts such as 'migrant worker', 'social advantages', 'indirect discrimination' or 'obstacles to free movement'. While the constant evolution of the Court of Justice's interpretative case-law has helped define these concepts, it has resulted in an abundance of case-law. Jurisprudence is not always followed in all Member States either because the cases are not known or not well understood (e.g. because they refer to a specific case that concerns the legislation of one Member State only), or simply because that Member State does not apply them. This leads to clear limitations in the rights conferred to EU migrant workers.

Regulation 492/2011 is directly applicable, which means that Member States do not need to transpose its provisions into national legislation. National legislation and practices of Member States have to comply with the provisions of the Regulation. To ensure this, the Commission can initiate infringement procedures against Member States for non-compliance of their legislation or general administrative practices with EU law on the basis of article 258 TFEU. Successful infringement proceedings will lead to the amendment of the contested legislation or general administrative practices.

Article 19 TEU establishes the obligation for Member States to provide for effective legal protection of the citizens in the fields covered by EU law. In the field of free movement of workers, this protection is reinforced by the fact that Regulation 492/2011 has direct effect, which means that any citizen may rely on its provisions directly to challenge a decision by national authorities or by employers (whether public or private) before national courts.

The Commission has also set up problem-solving mechanisms to assist citizens with their rights under EU law. General information on EU issues is provided by the Europe Direct Contact Centre, whereas citizens can refer to Your Europe Advice for tailored legal advice on a specific situation involving EU law. Finally, the Commission coordinates the SOLVIT network of Member States' representatives which citizens can contact to solve, without legal proceedings, problems caused by the misapplication of Internal Market law, including free movement of workers, by public authorities.

3.1.2. EU- level legislation in related fields

EU directives implementing the principle of equal treatment on other grounds such as race, age or gender, include specific measures for the information and support of EU citizens. For example, Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin requires Member States to ensure that judicial and/or administrative procedures, including conciliation procedures, are available to all persons who consider themselves discriminated against on such grounds. In addition, specific associations, organisations or other legal entities may engage, either on behalf or in support of the complainant in any judicial and/or administrative procedure provided for the enforcement of obligations under the Directive.

Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation requires Member States to designate a body, or bodies, for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on grounds of sex. The Directive also lists the competences of these bodies, which include: providing independent assistance to victims of discrimination in pursuing their complaints; conducting independent surveys; publishing independent reports and making recommendations.

In a different manner, Directive 2006/123/EC on services in the internal Market requires Member States to establish Points of Single Contact (PSCs) to provide information and assist service providers in completing the procedures and formalities needed to access and exercise service activities in another Member State. The PSCs are e-government portals for entrepreneurs active in the service sector[20].

3.1.3. The measures in place in the Member States

As there are no EU rules on the guarantees, assistance and protection that should be afforded to EU migrant workers when they face problems of discrimination on grounds of nationality, each Member State decides what kind of support and protection to provide to EU migrant workers according to their own legal system.

Reports from experts in the field of free movement[21] show that protection against discrimination on the grounds of nationality and support offered to workers varies from one Member State to another. They suggest that in countries where nationality is explicitly included as one of the grounds of discrimination that are prohibited, protection of EU citizens is stronger. In countries where this is not the case, protection against discrimination on the basis of nationality will depend on generous interpretations of national law, assimilating discrimination on the basis of nationality to other grounds protected by law such as racial or ethnical discrimination. Insofar as nationality is not explicitly addressed, there is no legal certainty that nationality will be covered.

The situation described in the experts' reports is as follows:

– in all Member States means of redress are generally available to EU migrant workers. However, some representatives of trade unions underlined that there are information gaps about how to challenge decisions taken by employers;

– bodies responsible for the promotion of non-discrimination exist in all Member States. As the table below shows, discrimination on grounds of nationality is not always part of their assignment;

– the legislation of Sweden and Slovenia contains a specific obligation for employers to prevent discrimination on the grounds of nationality;

Table 1: Summary of current national practices[22]

MS || Discrimination on grounds of nationality prohibited in MS legislation || Support bodies including nationality || Role of associations5 || Victimisation6 || Reversed burden of proof7 || Sanctions8 || Awareness- raising9

AT || Potentially4 || Yes || Yes || Yes || No || Yes ||

BE || Jurisdiction || Yes || Yes || Yes || Yes || Yes ||

BG || Yes || Yes || Yes || Yes || No || Yes || Public authority

CY || || Yes || Yes || Yes || No || Yes ||

CZ || Yes1 || Yes || Yes || No || No || Yes ||

DE || Yes2 || No || No || Yes || No || No || Trade Union

DK || Yes2 || Yes (under ethnic origin) || Yes || No || No || No ||

EE || Potentially3 || Yes (under ethnic origin) || No || No || Yes || Yes || Public authority

EL || Yes2 || No || Yes || No || No || No ||

ES || Yes || No || Yes || Yes || No || Yes ||

FI || Yes || Yes || Yes || Yes || Yes || Yes || Trade Union

FR || Yes || Yes || Yes || Yes || No || Yes || Trade Union

HU || Jurisdiction || Yes || Yes || No || No || Yes || Trade Union

IE || Yes || Yes || Yes || No || No || Yes || Trade Union

IT || Yes || Yes || Yes || Yes || No || Yes || Trade Union

LT || Yes || Yes || Yes || Yes || No || Yes || Public authority

LU || Potentially4 || No || Yes || No || No || Yes ||

LV || Potentially3 || Yes || Yes || Yes || Yes || Yes || Public authority

MT || || No || No || No || No || No ||

NL || Yes || Yes || Yes || Yes || No || Yes ||

PL || Yes || Yes || Yes || Yes || Yes || Yes ||

PT || Yes || Yes || Yes || Yes || Yes || Yes ||

RO || Yes2 || Yes || Yes || No || No || Yes || Public authority

SE || Yes2 || Yes || Yes || Yes || Yes || Yes ||

SL || || Yes (under ethnic origin) || Yes || Yes || No || Yes || Public authority

SK || Yes1 || Yes || Yes || No || No || Yes ||

UK || Yes2 || Yes || Yes || Yes || No || Yes ||

Key to table 1

1 The term 'nationality' seems to refer to ethnic origin.

2 Nationality can be covered discrimination on other grounds (such as race or ethnic origin)

3 Non exhaustive list of grounds of discrimination: it is possible to include nationality-based discrimination.

4 It is not forbidden by law, but considered an offence.

5 For example, trade unions can provide administrative or judicial support to workers.

6 Victims of discrimination are protected against any reversed treatment following a complaint..

7 It is up to the employer to prove that he is not guilty of discrimination on the basis of nationality.

8 It is possible for courts or other bodies to award compensation to victims and/or impose fines on those who discriminate (not always directly linked to discrimination on the basis of nationality).

9 In six Member States, public authorities actively develop information activities and in six other Member States, trade unions are very active providing information and advice in this field.

***

Over recent years some Member States have carried out reforms in order to ensure compliance of their legislation with Article 45 TFEU and Regulation 492/2011. However, it should be underlined that in a majority of cases, the reforms were the result of infringement procedures initiated by the Commission or judgements of the Court (on the basis of proceedings initiated by the Commission or on the basis or preliminary rulings initiated by national courts).

Moreover, the economic crisis has influenced the migration policy of governments of Member States, some of which have proposed and adopted reforms which even restrict the rights conferred by EU law on free movement of workers (e.g. Netherlands, Hungary, and Luxembourg).

The experts in the field of free movement came to the conclusion that EU migrant workers are still perceived in most of the EU as holding a status closer to that of third-country nationals than to that of national workers.

The evidence at the disposal of the Commission depicts a situation in which there is no coherent EU-wide strategy or approach in the fight against discrimination based on nationality. This leads to many uncertainties for workers exercising their rights as well as a low public awareness of one of the most fundamental rights of EU citizens.

3.1.4. Statistics on mobility

Geographical mobility between EU Member States has remained at a low level: according to the EU-Labour force survey, in 2011, only 2.9% of the working-age European citizens (15-64) lived in another EU Member State than their own[23].

However, available data sources tend to underestimate the number of EU mobile citizens living/working in other EU Member States, either because EU citizens do not register when living in other Member States or because existing surveys mainly cover persons who are 'usually resident' in a country and not the short-term mobile workers (e.g. staying only a few months). According to the 2009 Eurobarometer on geographical and labour mobility[24], around 10 % of EU citizens declared that they had already worked and lived in another country at some time, with 51 % of them having worked for less than two years, and 38 % for less than one year.

International comparisons[25] indicate that cross border mobility between EU Member States is limited compared to other regions (such as United States, Canada and Australia). Mobility between EU27 countries is 0.35% per year – this compares to a 1% mobility across big economic regions in the same country. The border impact, the result of current obstacles to mobility, is therefore significant (0.65%).

These considerations suggest that higher geographical mobility should be possible in the EU. Moreover, the massive gaps currently existing between EU countries and regions in terms of unemployment rates and job vacancy rates are another sign that the potential of geographical labour mobility is insufficiently tapped[26]. With the economic crisis, the potential for mobility appears to be increasing: according to the June 2012 "EU Employment and Social situation quarterly review" carried out by the European Commission[27] 53 % of young people are willing to work in another EU country; this share is even higher than 2/3 in Nordic Member States, Bulgaria, Romania, Spain and Ireland.

Prospects for better career opportunities, working conditions and quality of life are in fact the most important drivers of mobility.

Mobility is encouraged through different initiatives at EU level, such as 'Your first EURES job', 'An agenda for new skills and jobs', etc. The present initiative can play a certain role in encouraging and facilitating mobility, as fighting against discrimination on the grounds of nationality will contribute to sending a positive signal to those who intend to work in another Member State and will reduce discouragement towards mobility because of bad experiences or because of expectations to find problems.

The number of EU migrant workers in the Member States can be used as an indicator of the potential target group for nationality-based discrimination. Nevertheless, a high number of EU migrant workers in a particular Member State does not mean that nationality-based discrimination is more prevalent there than in countries with less migrant workers.

Table 2: Number and share of EU migrant workers in 2011[28]

Member State || EU migrant workers (in thousand) || Share among total employment (in %)

Austria || 203.3 || 4.9

Belgium || 300.9 || 6.7

Bulgaria || N/A || N/A

Cyprus || 48.5 || 12.9

Czech Republic || 36.0 || 0.7

Denmark || 70.0 || 2.6

Estonia || N/A || N/A

Finland || 24.9 || 1.0

France || 637.3 || 2.5

Germany || 1,528.8 || 3.8

Greece || 71.1 || 1.7

Hungary || 21.5 || 0.6

Ireland || 160.8 || 8.9

Italy || 740.5 || 3.2

Latvia || N/A || N/A

Lithuania || N/A || N/A

Luxembourg || 100.6 || 44.8

Malta || 1.9 || 1.1

Netherlands || 149.7 || 1.8

Poland || 8.9 || 0.1

Portugal || 27.8 || 0.6

Romania || N/A || N/A

Slovakia || 2.9 || 0.1

Slovenia || N/A || N/A

Spain || 768.8 || 4.2

Sweden || 118.3 || 2.5

United Kingdom || 1,328.9 || 4.6

EU-27 || 6,357.7 || 2.9

In addition to EU migrant workers who live and work in another EU country (than their own), around 0.5% of the workers in the EU are cross-border commuters (according to the EU-LFS in 2010) defined as persons employed in one Member State but residing in another Member State. This category represents around 1.2 million workers in the EU.

Furthermore, discrimination on grounds of nationality may affect people who have not yet moved but who might do so in the future. According to the 2009 Eurobarometer on geographical and labour mobility, 17% of European citizens envisage working abroad[29] close to three quarters do not plan to do so and 10% of European citizens are unsure[30].

3.2. The problems

While the rights on free movement of workers are strong, a number of indicators show that discrimination on the grounds of nationality takes place and that it is therefore difficult for workers to exercise their rights in practice.

In addition to the statistical data showing relatively low intra-EU mobility, discrimination indicators allow to measure the gap between the rights given to EU migrant workers by the Treaty and secondary legislation and the reality they experience.

Over 2010 and 2011, the Commission services received around 400 complaints and information requests through the Commission's complaint handling system CHAP, which represent around 60% of the total number of cases attributed to DG Employment. In 2011 alone, the Europe Direct Contact Centre received around 1,500 enquiries related to free movement of workers. These cases suggested that EU workers were discriminated against on the basis of their nationality or were lacking information on their rights (see table 3).

During the same two-year period, the Commission dealt with 15 petitions and has launched 80 infringement procedures in this same field. Nearly half of the latter concern Italy (36 cases), other countries concerned are Greece (10 cases), Spain and the United Kingdom (6 cases), Luxembourg and France (4 cases), Malta, Belgium and the Netherlands (3 cases), Sweden (2 cases), Cyprus, Slovenia and Portugal (1 case).

Furthermore, more than 20% of the preliminary rulings referred to the Court of Justice are linked to the rules on free movement of workers and social security coordination. This shows that there are still questions on the compatibility of national law and practices with EU law.

Table 3: Cases regarding the application of EU rules on free movement of workers by the European Commission and its problem-solving networks[31]

Country || CHAP[32] || Infringements || Europe Direct

Year || 2010 || 2011 || 2010 || 2011 || 2010 || 2011

Austria || 13 || 3 || 0 || 0 || 48 || 40

Belgium || 8 || 3 || 2 || 1 || 66 || 63

Bulgaria || 4 || 2 || 0 || 0 || 72 || 63

Cyprus || 5 || 3 || 1 || 0 || 4 || 12

Czech Republic || 0 || 1 || 0 || 0 || 16 || 23

Denmark || 5 || 6 || 0 || 0 || 14 || 12

Estonia || 0 || 0 || 0 || 0 || 1 || 8

Finland || 3 || 4 || 0 || 0 || 6 || 8

France || 17 || 19 || 2 || 2 || 176 || 288

Germany || 30 || 17 || 0 || 0 || 306 || 233

Greece || 4 || 8 || 4 || 6 || 37 || 39

Hungary || 2 || 0 || 0 || 0 || 36 || 30

Ireland || 5 || 2 || 0 || 0 || 17 || 10

Italy || 37 || 22 || 18 || 18 || 106 || 59

Latvia || 2 || 0 || 0 || 0 || 9 || 5

Lithuania || 1 || 0 || 0 || 0 || 11 || 10

Luxembourg || 10 || 5 || 3 || 1 || 4 || 4

Malta || 1 || 3 || 1 || 2 || 3 || 3

Netherlands || 7 || 15 || 1 || 2 || 55 || 52

Poland || 5 || 6 || 0 || 0 || 20 || 27

Portugal || 4 || 2 || 1 || 0 || 34 || 24

Romania || 1 || 2 || 0 || 0 || 83 || 48

Slovakia || 0 || 3 || 0 || 0 || 11 || 10

Slovenia || 1 || 0 || 0 || 1 || 4 || 5

Spain || 19 || 9 || 3 || 3 || 206 || 161

Sweden || 5 || 6 || 1 || 1 || 14 || 11

United Kingdom || 47 || 18 || 3 || 3 || 95 || 78

Non-EU || 0 || 0 || 0 || 0 || 60 || 39

Un-specified || 0 || 0 || 0 || 0 || 124 || 132

Total || 236 || 159 || 40 || 40 || 1638 || 1497

The problematic situation is confirmed by reports of the network of experts, which show that neither EU rules nor preliminary ruling cases of the Court of Justice are systematically applied in the Member States.

At national level, an increase in cases related to discrimination has been detected in some Member States. For instance, research conducted by experts indicate that in Finland the cases of discrimination in the workplace reported to the Regional State Administrative Agency of Southern Finland have risen since 2004 (from 8 cases reported in 2004 to 21 in 2010). In France, the number of complaints dealt with by the former HALDE (French Equal opportunities and Anti-Discrimination Commission) increased from 540 in 2005 to 3,009 in 2009.

Still, the precise size of the problem remains unknown as awareness of specific problems depends on various factors such as the willingness and ability of citizens to complain about a problem and raise the issue before the appropriate instances. Furthermore, complaints received by the Commission services are extremely varied and are not always attributable to a specific profession, sector or type of enterprise. It is therefore not possible to clearly delimit the impact of the problems to certain sectors or categories of workers.

A high share of the citizens that replied to the public consultation (63%) felt discriminated when working in another Member State[33] (see annex 6). Discrimination seems to take place in particular when applying for a job (47% of the situations reported by respondents to the public consultation) and with respect to working conditions (31%). The third most common situation where respondents have been discriminated against (16%) is when applying for social benefits[34]. This trend is confirmed when examining the complaints and requests of information received by the Commission services. Cases of indirect discrimination are most frequently reported, although there are still situations in which EU citizens are directly discriminated because of their nationality.

These figures are confirmed by a survey carried out by the contractor, according to which 44% of the respondents who had lived and/or worked in another Member State identified difficult access to employment as the most important barrier, followed by lack of access to financial support (39%), unfavourable working conditions (38%) and lack of assistance from employment offices (38%).

Problems or difficulties in the implementation of rights may discourage mobility. The Eurobarometer of 2009 showed that while 60% of European citizens considered free movement of workers a good thing for European integration, only 48% thought it was a good thing for individuals. Furthermore, according to the results of a more recent Eurobarometer (September 2011)[35], 15% of European citizens would not consider working in another Member State because they perceive there are too many obstacles. Language barriers, difficulties in finding an appropriate job, the bureaucracy involved and the worry that professional and academic qualifications will not be recognised are mentioned among the major concerns.

The Eurobarometer Qualitative Study "Obstacles citizens face in the Internal Market" of September 2011[36] provides further examples of problems and barriers mentioned by citizens, such as the fact that local labour force will be given preference over other EU nationals, the distrust of qualifications from certain Member States, being paid less than locals, the attitude of the country in question towards foreign workers or the request to have an address and a bank account in the host country before being able to start working or having an address there in order to look for a job.

Indeed, a comparison of the occupational distribution of recently established EU migrant workers compared to their levels of education suggests a significant over-qualification. Indeed in 2010, around one quarter (24.4%) of the EU migrant workers (having established less than seven years ago) worked in occupations requiring less than their educational level[37]. This compares to less than one out of ten (9.9%) among the 'nationals' (workers having the citizenship of the country in which they reside).

Unfavourable attitudes towards EU nationals in particular as regards doctors and hairdressers are also quoted in the Eurobarometer of 2011. While 15% of EU citizens declared not knowing whether doctors and nurses from other EU Member States can work in different EU countries than the ones in which they qualified, 17% of people consider that a doctor's qualification should come from specific Member States only and 6% think that a hairdresser should have gained professional experience in a specific Member States only.

In the context of the enlargements of 2004 and 2007, some Member States have mentioned the risk of social dumping due to the fact that workers from those new Member States could accept to work under inferior working conditions than nationals. This has also been reported by trade unions' representatives in the framework of discussions within the Advisory Committee on free movement of workers.

According to the Eurobarometer of 2009 on discrimination in the EU, discrimination on ethnic grounds is considered to be the most widespread form of discrimination in the EU (61%). While ethnic origin does not necessarily involve nationality, it is sometimes difficult to draw a clear distinction line between both grounds of discrimination.

According to the same Eurobarometer, 38% of citizens consider that the candidate's ethnic origin puts him or her at a disadvantage when applying for a job, while 30% think that the candidate's way of speaking, his or her accent (which may denote a different ethnic or national origin) can play a role. 13% consider the candidate's name can be a disadvantage. These features can as well apply to candidates from another Member State.

The specific problems related to discrimination on grounds of nationality and the main reasons behind are depicted in figure 1 below.

Figure 1: Summary of the problems related to discrimination on grounds of nationality

The left column summarises the main observable behaviours among actors directly concerned by the implementation of EU rules on free movement of workers (citizens, national authorities, employers, legal professionals and other advisors) that raise difficulties in the application of the rules and therefore in the exercise of the concerned rights. The central column explains the specific problems stemming from those behaviours, while the column on the right presents the consequences of those problems.

The problems affecting the exercise of rights by EU migrant workers are further described below.

3.2.1. Non-compliance of public authorities with EU law (non-conform legislation or incorrect application) and their effects on EU migrant workers

In spite of the long history of the rules on free movement of workers and of the important interpretation made by the Court of Justice, problems of compliance of national legislation and general practices still persist in the Member States and continue to be reported to the Commission through different means.

In some cases, legislation at national, regional or local level is not in conformity with EU law. It other cases, national legislation is in conformity, but the application in practice by national, regional or local authorities is not. It may also occur that a specific situation is not in itself addressed at legislative level (for instance, when legislation does not mention whether professional experience acquired in other Member States has to be taken into account when applying for a post in the public sector but does not exclude it explicitly either), and that the rules applied in practice by authorities are not in compliance with EU law.

These problems have strong and unfair consequences on EU citizens, e.g.:

– access to a job is denied due to the different treatment granted to EU citizens compared to nationals;

Examples: Legislation in Italy provides that candidates to posts as teachers who obtained their professional qualifications in other Member States will not be awarded the same points as those who hold professional qualifications obtained in Italy; this results in a preference in access to those posts to citizens holding Italian qualifications. In many cases, EU migrant workers hold qualifications obtained in another country and they will be therefore treated differently. In some Spanish regions, in competitions for access to posts in the public sector previous professional experience acquired in other Member States is not awarded the same value as a similar experience in the region. Therefore, the EU migrant worker is penalised as compared to a national who has never left his country of origin. In Italy similar rules existed. They were reformed and the rules are now in conformity with EU law, but problems of application in practice have been reported to the Commission. In Sweden, national authorities refused granting security clearance to an EU national who worked in a private enterprise where army equipment was developed, on the basis that he was not a Swedish national. The citizen was therefore dismissed.

– EU migrant workers are subject to different working conditions, including salary, grade and promotion;

Examples: General practice in Greece does not allow for taking into consideration post-graduate degrees obtained abroad for promotion purposes, while comparable degrees obtained in Greece are. In the Netherlands, a case was reported by the Equal Treatment Commission where Polish seasonal workers, doing the same job as their Dutch colleagues, received a lower salary.

– access to financial and non-financial benefits for EU migrant workers and their dependent family members is denied because of nationality requirements or is hindered because subject to residence criteria which are more difficult to fulfil for them than for nationals. This is especially important in countries with a high number of cross-border workers working in the host country but residing in another one;

Examples: Legislation in Slovenia requires Slovenian nationality for access to certain study grants. This results in excluding EU migrant workers and member of their family. Legislation in several Member States (Netherlands, Luxembourg, Denmark, Sweden, Belgium, Germany, etc.) makes access to certain study grants conditional upon fulfilment of a residence condition. A Portuguese citizen working and living in France was refused access to financial aid to support her low income by local authorities, on the grounds that she was not French.

All the implementation problems of EU rules on free movement of workers have direct negative consequences on citizens, and affect their life both at professional and personal levels. In some cases, EU migrant workers will suffer from the effects of this non-compliance all along their professional life in the concerned Member State (e.g. when the previous professional experience gained in other Member States is not taken into account for determining the grade, which has further consequences on promotion and salary). They also affect the integration of EU citizens in the labour market and in the society of the host country. EU workers concerned by implementation problems sometimes spend a major part of their professional lives fighting against the discrimination they suffer without any success in practice. As mentioned above, while these problems may be addressed at EU level through infringement procedures, this instrument will not have a direct effect on the individuals.

Infringement procedures, although successful in many cases, have not had an ‘expanding effect’ in bringing compliance of rules on a voluntary basis. National authorities normally focus on bringing the specific piece of legislation or administrative practice concerned by the infringement in conformity with EU law, without automatically reviewing other potentially discriminatory pieces of legislation and practices. Even after the adoption of the necessary changes, cases have been reported where practice is still not in full compliance (see example on the recognition of professional experience mentioned above).

The infringements launched by the Commission show that these problems persist over time. Most of the infringements currently pending (18 out of 20) are indeed related to legislation and practices by national authorities, whether at national or regional level, which are not in conformity with EU law. Problems of compatibility of legislation are also mentioned in the annual reports of the network of independent experts on free movement of workers. The most frequent cases of non-conformity are related to indirect discriminations, which are more difficult to detect by non-experts in the field and which are therefore more difficult to fight by citizens.

As regards misapplication of rules through general practices, the information available indicates that this problem is less recurrent than problems in legislation (3 of the 18 infringement procedures mentioned above may be considered to concern general practices). However, it is extremely difficult to detect if the rules which are applied in practice are not made public. Awareness of the existence of such practices will depend on whether citizens affected raise the case to the attention of the concerned bodies and organisations and/or introduce a claim. It therefore cannot be excluded that the size of the problem is bigger than the evidence collected. The number of citizens affected by this problem will also depend on whether the incorrect application concerns just one individual or whether, on the contrary, there is an established general administrative practice which can then affect an indefinite number of persons.

Reasons for this problem can be both a lack of awareness and a lack of understanding of the applicable rules by national authorities, but also an unwillingness to comply due to different factors, e.g. because national authorities find it difficult or politically inopportune to change their legislation, or because they want to protect national interests. Lack of understanding, including different interpretations of the rules, and unwillingness seem to be more recurrent than the lack of awareness of EU law. On the other hand, individual situations of misapplication of EU law may be due to just a mistake in the application of the rules by the authorities concerned.

3.2.2. Non-compliance by employers and legal advisors with EU law (unable or unwilling to apply EU law correctly) and their effects on EU migrant workers

Cases have been reported where public and private employers do not respect the EU rules, regardless of whether legislation at national level is in compliance with EU law or not.

Examples: In Greece, a French national who applied for a job in a national museum was required to show a residence card and a work permit. In Hungary, a company refused to hire non-nationals. Following a general complaint to the Hungarian Ombudsman, the company agreed to apologise for its actions on its website and to treat applicants equally, regardless of nationality, in the future. Different job advertisements by private companies for English teachers in several Member States (Spain, Czech Republic, Italy) require applicants to be native speakers. Candidates having a sufficient knowledge of English to exercise the job are not accepted. A job advertisement by a private company in the United Kingdom required applicants, among other conditions, to be resident in the UK. The applicant was residing abroad and his application was not considered.

Information collected by experts and by the Commission suggests that this problem is recurrent, although awareness of the existence of such problems depends very much on the level of publicity given to the cases by those who are affected. Therefore, it cannot be excluded that a higher number of cases than those which have been reported so far do exist in practice.

Problems of action by private employers cannot be addressed at EU level through the infringement procedure tool. Therefore, citizens who have suffered from discrimination may only rely on the mechanisms and means available at the national level.

Actions of employers have direct and heavy consequences on the personal situation of the workers concerned, as they can hinder their employment chances and/or affect their working conditions.

Unawareness of the rules and lack of understanding seem to be the main reasons for this problem, especially when it comes to action by private employers. However, misapplication may also be due to a lack of willingness to comply, e.g. when employers prefer to hire nationals than non-nationals and therefore dismiss applications from EU citizens or make such applications subject to discriminatory conditions in order to make it impossible for them to obtain the job or even to apply.

3.2.3. EU migrant workers not having access to information or the means to ensure their rights

Citizens point to the fear of losing their jobs or being subject to unfavourable treatment if they introduce claims at national level. They also complain that they do not have other instruments to seek repair than taking legal action, which is lengthy, costly and burdensome and discourage them from introducing any claim.

Of the 74 respondents to the public consultation that declared having been discriminated against while working in another Member State, only 10.8% (8 respondents) affirmed that they were able to seek recourse under national law. Although the reasons for this lack of action were not stated by the respondents, the figure shows that there are difficulties and discouragement for introducing claims in case of problems. Only two of them were supported in their actions by an organisation.

A Eurobarometer[38] asked citizens to name the main sources of help they would use if they faced problems concerning their EU rights. 16% did not know where they would turn first. 16% said they would seek help from a representative organisation, while 15% said they would turn first to the court system in the host country. That country’s national ombudsman would be the first port of call for 15% of EU citizens, with the same percentage saying they would contact the national administration of the country they were in. 14% said that EU institutions would be their first choice.

As regards in particular the sources of help that people living and working in another EU country would use if they believed that their EU rights were breached by employers, the Eurobarometer Qualitative Study of 2011 on Obstacles citizens face in the Internal Market show that the Embassy of the country of nationality in the host Member State was mentioned as the preferred source of assistance, followed by labour inspection authorities, labour unions, attorneys, specialised websites, colleagues, job centres etc.

These results indicate that there is not a clear point of reference for EU citizens where to go in case of problems. When talking of discrimination on the grounds of nationality, the actual ability of EU workers to make use of the sources mentioned by citizens will depend on whether they are indeed available and whether they cover issues related to that ground of discrimination.

Another common issue that stems from the correspondence that the Commission services receive is the fact that EU migrant workers simply do not know what rights they enjoy and therefore they do not exercise them. According to the Eurobarometer of 2011, there is a clear lack of clarity about the best place to obtain information about EU rights. 21% of EU citizens would use friends, family or colleagues as a source of information, compared with 17% who say they would use the EU website, and 17% who would opt for their home country’s national assistance service. 10% do not know where they would go to find this information.

When looking at the results of the public consultation, 65.8% of the respondents who had worked in another Member State stated that they had not been informed about their rights. Of the 34.2% of respondents that had received such information, 7.7% were informed by the national authorities, 2.6% by trade unions and 5.1% by employers. 18.8% were informed through other sources, such as friends, universities or by searching on the Internet.

Experts in the free movement of workers area also pointed to the current lack of help to EU migrant workers to understand how their rights work in practice. They stressed the importance of providing tools for support and assistance to individuals.

The different level of protection awarded and of supporting measures available to EU migrant workers in each Member State also plays a role in the ability of citizens to exercise their rights fully, as citizens who move do not know whether the host country will apply the same protection as they would have in their own country. It is also difficult for migrants, due to a number of factors (such as not knowing the procedures, not knowing the national system, lack of linguistic abilities), to make use of the means of protection available if they do not have any kind of support in the host country. This is confirmed by the results of the public consultation, where a majority of the citizens that responded stated that the level of protection awarded to workers in other countries would affect strongly their decision to go to work there.

A report of 2012 from the European Union Agency for fundamental rights on the application of the Racial Equality directive[39] also indicates that reluctance to report discrimination is an important factor. 63% of people interviewed stated that nothing would happen or change, while 26% were concerned about negative consequences. 21% of respondents who had been discriminated against stated that their reason for not reporting the incident was due to the fact that procedures were too cumbersome or time consuming. This report relates to discrimination on race or ethnic origin, however, in some countries nationality is considered to be part of that ground and therefore the results may be also transferred to a certain extent to discrimination on the basis of nationality.

3.3. Causes and drivers

There are four main roots of the problem of discrimination on the basis of nationality.

3.3.1. Unawareness

– There is a lack of awareness of the rights of EU mobile workers under EU-law. This unawareness exists at different levels: it is not only citizens themselves who ignore what specific rights they have under EU law when they want to move or when they actually have moved to another Member States for employment purposes (including for searching for a job), but also legal practitioners and advisors, employers (whether public or private), social partners and other organisations, employment services and in some cases national authorities, including at regional and local level.

– There is a lack of awareness of the means of redress available, including general unawareness that EU provisions are directly applicable[40].

This general unawareness was often pointed out in the public consultation as one of the causes of lack of or incorrect enforcement of EU law on free movement of workers. The lack of information on migrant workers’ rights was also mentioned both by Member States and by social partners in the consultation conducted within the Advisory Committee on free movement of workers as one of the most common problems.

3.3.2. Lack of understanding of EU law and lack of legal certainty

– There are divergences in the interpretation of EU rules, including the case-law of the Court of Justice, between national authorities in different Member States and between Member States and the Commission; there may be for instance a different understanding of the concept of worker, the concept of discrimination, the exceptions that can be accepted or the restrictions that can be put in place.

– There is uncertainty due to the complexity of the legislation, especially the combination of Article 45 TFEU and Regulation (EU) 492/2011 with all the other secondary legislation within the area of free movement. For example, the relevant authorities do not always understand the scope of the concept of ‘social advantages’ as provided in Regulation (EU) 492/2011 and how it relates to other regulations on social benefits.

– National courts may apply national legislation without even considering whether it is in accordance to EU law or not: this occurs for example when a court only applies and interprets national law in the framework of the applicable national rules (e.g. the Constitution), without examining its compatibility with EU law.

– Citizens, the legal profession and different associations that can assist EU migrant workers may not fully understand the scope of the rights they have.

3.3.3. Insufficient support to EU migrant workers to exercise their rights

– The only practical solution for EU workers is to go to court to fight for their rights or lodge a complaint before the European Commission.

– Legal support and advice from third parties such as labour unions, NGOs, other organisations or associations may not always be available.

– There is a lack of specialised entities that can provide assistance.

– Means of redress may be available but there may be not enough awareness that they exist or on how to use them.

– Existing means of redress may be complicated, time-consuming and costly.

– Claimants may be deterred from bringing actions and exercising their rights as they consider the risk/reward balance to be negative (e.g. fear of losing their job or of costly and lengthy procedures).

3.3.4. Protectionism and unwillingness to comply

– Member States may develop their own legislation without duly considering its conformity with EU law; national interests therefore prevail over EU rules (e.g. trying to avoid brain-drain through legislation which discourages nationals from moving to another Member State).

– National authorities may be well aware that their legislation and practices are not fully in compliance with EU law but lack of pressure to change the legislation or practices, they do not consider the matter be urgent enough to act.

3.4. Who is affected and how

The problems identified may affect EU citizens who move to another Member State for employment purposes, including jobseekers. They also affect citizens who have moved to another Member State (for instance, to work or to obtain their professional qualifications there) and then return to their country of origin in order to work. The statistics provided in section 3.1.3 in combination with annex 1, provide a quantitative indication of the potential proportion of European citizens concerned.

Looking at the population of migrants by labour status, it can be observed that, on average, 67.9% of the EU working-age (15-64) citizens living in another Member State are in employment and 9.1% are unemployed (i.e. jobseekers)[41]. Citizens who intend to move at some time in the future (17%) may be also affected. The problem potentially cuts across all occupations and sectors of activity[42]. Furthermore, family members of such EU citizens are also concerned, as they have certain rights under the EU provisions on free movement of workers (e.g. they have the right to social advantages and the right to education).

Employers and national authorities may be affected. Better enforcement of migrant workers' rights might generate costs, but it will also provide them with the advantage of more and better motivated migrant workers. According to the March 2012 OECD Economic Survey on the European Union[43], with demographic changes underway, most EU countries expect growing shortages of skilled labour. It suggests that "mobility within the EU can in principle help to fill labour market shortages".

3.5. Baseline scenario and the need for intervention

The problems identified in section 3.2 are not new. After more than 40 years of free movement of workers, it could have been expected that problems would have naturally decreased. On the contrary, the number of complaints and enquiries that the Commission receives continues to be high. Although not all complaints lead to infringements by the Commission, the latter have not decreased. This shows that problems of implementation of the rules are still part of the daily lives of citizens. There is no sign that they will decrease in the short, medium or long term.

Moreover, in the current economic and social context, further limitations on the rights of EU migrant workers cannot be excluded. According to some NGOs, migrants across Europe are today among the most vulnerable groups in society and are often socially excluded through lack of access to rights, employment, education and social services[44]. There is a clearly rising intolerance towards EU migrant workers, as shown by several surveys[45] and by specific actions identified across Europe[46], which may translate in discriminatory practices against those workers. These actions constitute a major step back in EU integration.

The enlargements of 2004 and 2007 have also led to a certain distrust towards migrants from those countries and a fear of possible negative consequences of their access to other EU labour markets. In many Member States, this new mobility raises problems of application of EU law as regards the free movement of workers. The enlarged EU, but also the increased protectionism subsequent to the economic crisis, requires a reinforced pedagogical approach in this field

The European Commission may carry out information and awareness-raising activities through the specific pages on free movement for workers on the website of the Directorate-General for Employment, Social Affairs and Inclusion[47], through EURES and other Commission information tools such as the Your Europe Portal, Your Europe Advice and EURAXESS[48]. A more specialised audience can be reached through the activities and publications of the network of independent experts on free movement of workers[49] and reports published by other experts with the support of the Commission[50]. Events and campaigns organised and launched by different services of the Commission, such as the European Year of citizens in 2013 will also be used as an opportunity to reach out to a wider audience. Information and problem-solving tools like Europe Direct, Your Europe advice and SOLVIT are also available to citizens.

Dialogue between stakeholders (labour unions, employers and national authorities) takes place through the Technical and the Advisory Committees on free movement of workers that meet twice a year (see 2.4). While the Technical Committee allows for an exchange of practices between Member States and with the Commission on different issues related to the free movement of workers, including legal issues, the Advisory Committee allows for the consultation of and discussions with the social partners.

Discrimination on the grounds of nationality may be tackled at EU level through infringement procedures and other problem-solving mechanisms (Europe Direct, Your Europe Advice, SOLVIT). However, these tools are limited in their scope and in their effects on citizens, and are burdensome.

Successful infringement procedures will lead to a change in the legislation or general national practices, but their effects are limited as regards individual citizens. Citizens will still have to make use of the means of redress available at national level and the specific effects for them will have to be established by national courts. Furthermore, infringement procedures may be lengthy, depending on the willingness of Member States to take the necessary measures to comply with EU law. In case of non-compliance, the case will be referred to the Court of Justice and the rights of EU citizens will still be on hold. If, on the contrary, Member States are willing to change their rules, the reform may take some time, notably when a legislative process is needed. This means that until the issue is finally solved, citizens will be denied their rights. And once the necessary changes are made, the actual effects on the citizens concerned will depend on the specific solution given by national courts and authorities, provided the citizen himself introduced a claim on time. Taking a case to court thereby involves heavy and costly procedures for the individuals, who do not always have the relevant knowledge of legislation and of the functioning of the system.

Moreover, the Commission cannot intervene in cases involving private entities, where no State liability can be established, and has limited powers to act in isolated cases of misapplication of the EU rules on free movement of workers.

When confronted to the problems that have been described above, EU migrant workers will have to rely on the protection and support afforded at national level, which differs from one Member State to another and which will in some cases depend on generous interpretations of the national provisions regarding discrimination on other grounds. Furthermore, in many cases the only practical solution that citizens have in order to ensure that their rights are implemented is going to court.

Prohibition of discrimination and equal treatment are conditions sine qua non for the realisation of the fundamental principle of free movement of workers. EU law should ensure that the rights it confers can be fully exercised in practice and guarantee EU migrant workers and members of their families a real status of equality.

3.6. The legal basis, subsidiarity, proportionality and fundamental rights

The principle of subsidiarity applies insofar as the proposal does not fall under the exclusive competence of the European Union. Article 46 TFEU establishes the Union's competence to issue directives or regulations setting out measures required to bring about freedom of movement for workers, as defined in article 45 TFEU.

The initiative leaves space to Member States to adopt appropriate measures to implement its goals thus respecting the principle of proportionality. Many Member States already have appropriate legal protection against discrimination on the grounds of nationality and will not need to make major changes to their own systems. Those who do not, will have to take the necessary legal actions to bring their national systems in line with EU law. The initiative would therefore contribute to overcome the current diversity in the way discrimination on the basis of nationality is tackled and fought against in each Member State increasing legal certainty for EU migrant workers.

Furthermore, the achievement of the objectives of this initiative would improve the respect of the Charter of fundamental Rights of the European Union, in particular:

– the freedom to choose an occupation and the right to engage in work ‘(article 15);

– the principle of non-discrimination (article 21);

– fair and just working conditions (Article 31);

– freedom of movement and residence (article 45);

– right to an effective remedy, to a fair trial and to legal aid (article 47).

4. POLICY OBJECTIVES

4.1. General, specific and operational objectives of the initiative

EU workers face discrimination on grounds of nationality in a variety of contexts. This inhibits cross-border mobility and the full achievement of the Single Market. It affects also the quality of life of EU workers and members of their family and their full participation in the labour market and in the society of the host Member State.

The present initiative responds to the general objective of ensuring equal treatment between EU citizens. It is one of the core values of the European Union and a major component of EU citizenship. It is a right and as such it must be complied with and respected in the whole EU.

Within this general framework, the following specific objectives have been identified:

– Reducing discrimination of EU migrant workers on the grounds of their nationality, thus contributing to the implementation of a fundamental right in practice and allowing for a full integration of workers in the host Member State.

– Reducing the gap between the rights on paper and their exercise in practice, thus helping achieving a full and correct implementation of the existing legislation and allowing for a better functioning of the internal market.

In order to meet these objectives, operational objectives have been identified:

– Increasing awareness among citizens, employers, public authorities and other stakeholders about the rights of EU migrant workers and their families.

– Improving legal certainty of the principle of non-discrimination and rights of EU migrant workers.

– Supporting EU workers to exercise their rights

For all the three operational objectives it has not been possible to define SMART objectives. There are a number of indicators, like court cases, number of infringement procedures and survey results which link to these objectives. However, interpretation of these data will depend on the specific context, for example, whether a reduction of court cases might be seen as an improvement, indicating less discrimination, or as a deterioration of the situation, pointing to people being less likely to enforce their rights.

4.2. Are these objectives consistent with other EU policies?

The objectives are consistent with the horizontal objectives of the European Union and in particular with the Europe 2020 strategy, whose aim is to attain a smart, sustainable and inclusive growth, and with the flagship initiative "An agenda for new skills and jobs", which seeks inter alia to respond to the need to facilitate and promote intra-EU labour mobility (see point 1.2.).

They are also consistent with the EU’s fundamental rights strategy[51]: the objective of the Commission’s policy following the entry into force of the Lisbon Treaty is to make the fundamental rights provided for in the Charter[52] as effective as possible.

They are in line with the strengthening of the Single Market and the citizens’ rights strategy, in particular as regards the forthcoming 2013 European Year for Citizens.

5. DESCRIPTION OF POLICY OPTIONS

Five policy options have been identified and are presented in order of increasing level of requirements. Each of them will build on the baseline scenario (option 1) and the awareness-raising and monitoring activities of the Commission in its role of guardian of the Treaties. Option 2 suggests the drafting of common (non-binding) guidance documents by the Commission and the Member States to ensure a shared understanding and coherent application of the rules throughout the Union. Option 3 would require the Commission to adopt a formal recommendation to Member States to ensure correct implementation of EU law on free movement of workers and enhanced support to migrant workers. Option 4 involves the adoption of an enforcement directive ensuring enhanced support to migrant workers. Finally, option 5 would go a step beyond, adding an obligation for companies to actively prevent discrimination.

Policy option 2 (guidance documents) could be combined with options 3 – 5 in order to ensure a common understanding of how to apply the rules and involve Member States in the drafting of such common understanding. This would strengthen the ability of the other options to reach the objectives set and to tackle the problems and drivers identified.

5.1. Baseline scenario

Option 1: No further action at EU level

This option would mean a continuation of the current situation, where a number of activities are carried out at EU level (see point 3.1.1.)[53]. As regards enforcement and monitoring of EU law, the Commission would continue to launch infringement procedures where appropriate, and use problem-solving mechanisms such as SOLVIT and EU-Pilot.

At national level, each Member State is obliged to comply with EU rules on free movement of workers. In option 1, specific measures intended to facilitate compliance and the exercise of rights by EU citizens (such as information activities and protection awarded to EU migrant workers) would be left to national authorities and relevant stakeholders on a voluntary basis.

5.2. Enhance the capacity of national institutions to apply EU law correctly

Option 2: Common guidance documents

The adoption of common guidelines by Member States and the Commission would contribute to ensuring a shared approach on the application and interpretation of EU rules on free movement of workers and the related case law of the Court of Justice, e.g. by agreeing that professional qualifications and experience gained in other Member States must be given the same value as comparable qualifications and experience obtained in the host Member State; by agreeing that a person who receives remuneration in kind is to be considered as a worker and should therefore enjoy all the rights linked to that status, etc.

Such guidelines could be adopted in the framework of the Technical committee on free movement of workers, which brings together representatives of all Member States. These measures would not be binding upon Member States but the process of their adoption itself would involve a certain engagement by national authorities to comply with them.

In the past a similar document was adopted to establish guidelines on the application of the transitional arrangements of the Accession Treaties for EU-10 and EU-2.

The shared guidelines would then be disseminated in each Member State to the national authorities and contribute to a more harmonised implementation of the rules.

During the consultation process prior to this impact assessment, employers' associations have shown that they would be in favour of the adoption of guidance documents. National authorities have not provided an opinion. However, taking into account the divergence of interpretation of rules between the Commission and the Member States on some specific issues (e.g. the application of the rules to EU frontier workers, the interpretation of indirect discriminations), the adoption of guidelines alone within the Technical committee might be a difficult and lengthy process.

Such common guidelines could in any case be complemented by guidelines and interpretative documents adopted by the Commission alone, such as the 2002 and 2010 communications mentioned in the baseline scenario (see point 3.5), and disseminated among stakeholders.

5.3. Increase the support provided to EU migrant workers

The Commission would make a proposal aiming at introducing measures intended to support EU migrant workers' when they face problems and difficulties and to enable them to be better informed about the rights they enjoy. This would also contribute to raise national authorities' interest and action through increased visibility on the issue.

Firstly, the proposal would invite Member States to introduce a legal obligation to provide EU migrant workers with means of redress at national level: any EU worker who believes to have been victim of discrimination on the grounds of nationality should be able to make use of administrative and/or judicial procedures to challenge the discriminatory behaviour at national level. Means of redress are generally available in all Member States, but the proposal would link them specifically to matters of discrimination on the grounds of nationality increasing legal certainty and possibly establishing a legal guarantee for victims at EU level;

Secondly, the proposal would invite Member States to set up structures or bodies at national level in support of EU migrant workers. The functions of these bodies would include:

– promoting rights linked to free movement of workers;

– providing/facilitating access to information to EU workers and relevant stakeholders;

– assisting EU migrant workers in pursuing their complaints;

– conducting surveys concerning discrimination and publishing reports and recommendations.

Such bodies would increase support for EU migrant workers and give more visibility to the fight against nationality-based discrimination at national level. It would be however for each Member State to decide whether to create a completely new structure or whether existing bodies could be assigned the functions described above;

Thirdly, the proposal would invite Member States to ensure that associations, organisations or legal entities (such as labour unions, NGOs or other organisations) with a legitimate interest in the promotion of the rights to free movement of workers may engage in any administrative or judicial procedure on behalf or in support of EU migrant workers in case of violations of their rights under Regulation 492/2011. It would be left to Member States' discretion to define the way this option should be implemented in practice, according to the national judicial systems and procedures.

Option 3: Commission's Recommendation to Member States

This proposal could take the form of a general recommendation by the Commission addressed at Member States in order to encourage them to take actions at national level. The Recommendation would not be binding and therefore each Member State would decide on the appropriate follow-up and implementation.

Social partners and national authorities are in favour of increasing awareness of rights and strengthening access of individuals to information. Trade unions also underlined the importance of their role in assisting workers. This policy option could therefore meet these expectations.

Option 4: Directive introducing support measures for EU migrant workers

The proposal could take the form of an enforcement directive which would be transposed in the national legislation of all Member States. The directive would be binding but each Member State would have a certain latitude to implement it in its existing national context, e.g. add competencies to an existing body.

Social partners and national authorities are in favour of increasing awareness of rights and strengthening access of individuals to information. Member States' views differ on the means which should be employed to reach this objective whereas the employers' organisations tend to think there is no need to adopt additional legislation.

5.4. Increase the support provided to EU migrant workers, including in the workplace

Option 5: Directive introducing an enhanced protection for EU migrant workers

This option would include the proposal described under option 4 complemented by further measures intended to reinforce the protection of workers. Unlike policy option 4, these additional measures are not directly aimed at strengthening the ability of EU migrant workers to act, but rather to create a protective environment for them. This option would aim at preventing discrimination within undertakings, outside the general framework in which the supporting bodies would operate.

The proposal would include an obligation for employers to prevent discrimination within their undertakings. This would include an obligation to provide information to workers about the specific rights related to discrimination on the grounds of nationality, but would also involve the adoption of active measures by employers in order to prevent such discrimination (e.g. by establishing a yearly plan on discrimination on the grounds of nationality, developing criteria for recruitment that would exclude expressly the nationality, by developing guidelines, etc.). Member States would have the latitude to decide the level and kind of actions that could be required from employers in order to implement such an obligation, as the specific actions needed would depend on variable factors such as the size of the undertaking.

Secondly, the directive would impose sanctions on employers that have discriminated EU migrant workers on the basis of their nationality, and/or provide compensation for EU migrant workers who have been victims of discrimination on the grounds of nationality. Sanctions would consist of a fine and/or other penalties. The exact amount of the fine or penalty or compensation would be at the discretion of the relevant bodies in the Member States according to their specific systems.

Finally, to prevent victims from being deterred from exercising their rights due to the risk of retaliation, the directive would introduce a legal provision aimed at protecting them from any adverse treatment (e.g. dismissal) further to a complaint or claim.

Both the outcomes of the public consultation and the discussions within the Advisory committee indicate that option 5 is likely to raise strong reservations from the business sector.

5.5. Discarded options

The introduction of a definition of discrimination on the grounds of nationality (direct and indirect) in a new legal instrument was foreseen as one of the elements that could help reinforce legal certainty about EU migrant workers' rights, as such concept has been developed by the case-law of the Court of Justice and may therefore be unknown to EU migrant workers and other relevant stakeholders. However, even if introduced in EU legislation such concept would still be subject to different interpretations and therefore the practical effects of this option in terms of legal certainty would be limited.

The adoption of EU legislation integrating the main case-law of the Court of Justice was also discarded for the same reason at an early stage. A revision of current Regulation 492/2011 was also excluded at an early stage as the objective is not to modify the rights conferred by that Regulation or create new ones, but rather to enforce the existing rights.

The possibility of introducing a reversal of the burden of proof was also considered as an element that could encourage and facilitate lodging of claims by EU migrant workers. However, research conducted by experts has shown that such provisions have not led to any particular positive effect in the countries where they exist. Individuals still have to bring a case before the court, which is costly and lengthy. It is also seen by employers as an element that can be open to abuse by individuals, who may threaten employers with false claims and obtain favourable decisions because employers feel they would be unable to rebut a presumption of discrimination.

As regards the choice of the legal instrument, both regulation and directive were considered. A regulation would impose uniform obligations in all Member States. The use of such an instrument to achieve the objectives set was evaluated as disproportionate, as the measures considered would by their own nature very much depend on the legal and administrative framework of each Member State, which should be respected. A directive, which allows for some flexibility as to the means each Member State considers appropriate to ensure their obligations taking into account the national context, seems to be a more appropriate instrument. It would also be in line with the approach followed as regards similar obligations in the field of discrimination on other grounds (race, religion, sex, etc.).

6. ANALYSIS OF IMPACTS

This section summarises the economic and social impacts, including the impact on fundamental rights, of each policy option. No significant environmental impacts have been identified in any of the options.

Direct economic impacts will consist of the implementation costs incurred by national authorities and enterprises. The benefits of the initiatives are mainly a result of the social impacts.

Reducing discrimination in access to employment, working conditions, access to social benefits or housing might have a positive impact on a citizen's decision to move to another country for work purposes. It could make intra-EU labour mobility more attractive. While the increase on mobility may not be substantial, as discrimination is only one of many factors that influence the decision to move, its effects on the functioning of the Single Market could be positive, as mobility can ensure a better functioning of labour markets. While some negative side-effects may not be fully excluded (e.g. increase in cases before the court, affecting the functioning of the national judicial system), the global economic impacts appear to be positive.

6.1. Policy option 1: No further action at EU level

Social impact

The baseline would mean that the identified problems and drivers remain unaddressed. It would involve no significant change in national authorities and employers' behaviour. There would be no substantial impacts on awareness of rights and legal certainty.

Leaving the status quo would furthermore mean that there would be no minimum consolidated support and protection of EU migrant workers at EU level. Therefore, it would continue to negatively affect individuals that move for employment purposes from one Member State to another and would perpetuate the limited ability of EU migrant workers to participate fully in the labour market and society of the host Member State.

Fundamental rights

The baseline option would have no impact on any of the fundamental rights mentioned in section 3.6.

Economic impact

No additional implementation costs have been identified for national authorities and enterprises.

6.2. Policy option 2: Common guidance documents

Social impact

Impact on legal certainty

The adoption of guidance would entail a common interpretation of the current EU rules in view of their application by national administrations. It would thus contribute to increasing legal certainty and reducing the implementation gaps.

Through this increased legal certainty, guidance may also lead to a reduced level of discrimination, as the national authorities who up to now were using discriminatory procedures will have to change them. For instance, by agreeing that professional qualifications or professional experience gained in other Member States must be given the same value as comparable qualifications and experience obtained in the host Member State. Where discretionary decisions can be taken, there will be now more clarity on the principles that have to be applied (e.g. when deciding which posts in the public sector can be reserved to their own nationals).

Impact on awareness of rights

The guidance would also help raising awareness among national authorities at all levels on the rights linked to free movement of workers. However, awareness-raising among other stakeholders and citizens would depend on the publicity and dissemination given in each Member State.

Impact on stakeholders

The guidance would focus on questions of interpretation of EU law and would be aimed at reaching national administration and services in charge of implementing EU law. It would not contain any specific measure providing assistance, support and protection to workers. Although guidance can induce workers to use their rights more because of more legal certainty, it will not help them enforce those rights in case of problems. Problem 3, i.e. migrant workers not having access to information or the means to ensure their rights, would therefore not be directly addressed through this option.

Its overall social impact would be positive but only to a certain extent. The quality of life of migrant workers might improve, as they would in principle face less obstacles, but there would be no substantial change for them if they do face problems in practice.

This option would therefore have a low added value compared to the baseline scenario.

Fundamental rights

This option would have a positive impact on fundamental rights, if the guidelines are applied effectively.

Economic impact

National authorities

1) Cost of implementation

This option would involve limited implementation costs linked to the dissemination and publication of the guidance documents by Member States, including translation costs, if they are made available to the general public. Costs will depend on the specific efforts made by Member States to ensure dissemination and publicity.

2) Cost of legal action

This option is focused on national administrations and services. It could reduce the level of misapplication of EU law linked to insufficient capacity of the administrations, but it may not reach a wider range of stakeholders and it may have a limited impact on the number of complaints and court procedures.

Enterprises

No implementation costs for enterprises were identified.

6.3. Policy option 3: Commission's Recommendation to Member States

Impacts of this policy option might be potentially the same as in policy option 4, as they will address the same issues. The difference lies in the binding or non-binding nature of the initiative.

Social impact

Impact on legal certainty

The Recommendation would not help to provide the same level of legal certainty across the EU as it cannot be known in advance to what extent or over what timescale the Member States would give effect to the goals set out in the recommendation.

Impact on awareness of rights

The adoption of a recommendation to Member States would give the issue a certain visibility which could improve the awareness of rights among citizens, relevant stakeholders and national authorities

Impact on respect of individual rights/compliance with EU law

The recommendation could increase involvement of the national authorities in reducing implementation gaps. It could also help strengthen the supporting and help mechanisms available to EU migrant workers at national level.

The recommendation would not impose any obligation on Member States to adopt specific measures. Taking into account the different sensitiveness of Member States both in terms of perception and actions in the field of free movement for workers' rights, there is a risk of increased diversity in the way these problems are addressed in each Member State, thus making it even more difficult for EU migrant workers to have a clear overview of what their rights and the means at their disposal to exercise them are.

The social impact could therefore be positive but it will depend on the degree of implementation in each Member state.

Fundamental rights

This option would have a positive impact on fundamental rights, if the recommended actions are effectively taken up at national level.

Economic impact

Impacts will depend on the specific actions taken by Member States to give an appropriate follow-up to the recommendation. Potentially, financial impacts could be the same as those identified under the policy option 4 which consists in adopting legal action. However, it is not possible to determine in advance to what extent Member States will implement the recommendation.

6.4. Policy option 4: Directive introducing support measures for EU migrant workers

Social impact

Impact on legal certainty

Providing a clear remedy for victims of discrimination is a basic principle of law. While means of redress are generally available in all Member States, linking them specifically to matters of discrimination on the grounds of nationality would increase the level of legal certainty, as citizens would be sure that specific procedures for introducing claims are available to them.

Addressing nationality specifically as a ground of discrimination through specialised bodies, without making protection against this kind of discrimination dependent on generous interpretations of the law applicable in other fields, would also increase legal certainty. Citizens would become more certain that they have the right not to be treated differently because of their nationality.

Impact on awareness of rights

Through their tasks as public information centres, the specialised bodies would contribute to increase awareness of rights and information among citizens and relevant stakeholders. A case-study on a supporting body established in Ireland in 1999, the Equality Authority, indeed shows that unawareness of rights among non-Irish nationals dropped from 38% in 2004 to 27% in 2010[54].

All Member States have structures or bodies that deal with discrimination on other grounds[55]. Enlarging their scope of action in the eight Member States[56] where nationality is currently not part of their mandate and ensuring that nationality is indeed included in those countries where the situation is not clear (e.g. where until now it could be included under other grounds of discrimination) would increase awareness and encourage migrant workers to use their rights. Additionally, it would give a strong signal to society that discrimination on grounds of nationality is also forbidden.

Impact on respect of individual rights/compliance with EU law

Enforcing the obligation to have clear remedies in all Member States would provide EU citizens with certitude that they will be able to challenge discriminatory practices no matter which Member State they decide to move to and work in.

Visibility of the issue would be further increased through the surveys and reports that these bodies would carry out. The supporting bodies would also contribute to identifying legislation and practices in the Member States that are not in conformity with EU law. These activities would increase pressure on national authorities to put an end to discriminatory laws and practices and would contribute to reducing compliance problems and unfair treatment by employers. In the Irish case, the percentage of non-Irish nationals that reported having experienced discrimination either when looking for work or at the workplace dropped from 13% in 2004 to 12% in 2010.

This result may also be achieved when assisting EU citizens. For instance, in the first example mentioned in section 3.2.1, the supporting body would assist a German citizen who applies for a post as teacher in Italy and whose German professional qualification is awarded only 6 points, while a fellow candidate with an Italian qualification is awarded 24 points. The supporting body would then report the case to the national authorities concerned. The latter may consider reviewing the rules following the opinion of that body. If the case is given publicity through the reports carried out by the body, this may encourage other citizens to introduce claims and make the national authorities change the legislation or practice.

Another example of how an action can have impacts wider than the single case is provided by a number of existing equality bodies. Although many bodies can initiate court proceedings, few (in particular Belgium, Ireland, Sweden, and the United Kingdom) have developed detailed criteria for deciding which cases to take to court. Among these criteria are:

– interpretation of current legislation;

– reinforcement of legislation and strengthening of equality rights both with a beneficial impact on future victims of discrimination;

– the interests of the respective victim and the potential impact on his/her situation;

– the balance between the different grounds of discrimination and resources available to the body.

These criteria try to balance the benefits for the individual victim, such as compensation payments gained by taking his/her case to court, with the general public interest in improving legal certainty and establishing discrimination in an area prone to violations by many actors. Such cases play an important role in enforcing legislation, bringing about real changes in discriminatory practices and raising awareness of the seriousness of legal violations in regard to discrimination. It is precisely the bodies that have developed criteria for selecting cases that involve themselves in strategic litigation.

The same result can be achieved as regards action by employers, as shown in the second example mentioned in section 3.2.2 concerning Hungary: following the intervention of the Ombudsman, the employer changed his discriminatory practice.

As the support bodies would also offer EU migrant workers advice and assistance when they feel discriminated, they can be expected to encourage migrant workers to claim their rights. These bodies woul