Proposal for a European Parliament and Council Regulation amending Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community (98/C 344/07) (Text with EEA relevance) COM(1998) 394 final - 98/0229(COD)

(Submitted by the Commission on 14 October 1998)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 49 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure laid down in Article 189b of the Treaty,

(1) Whereas the legal situation of workers from Member States who move within the Community to take up employment, and that of their families, must adapt as European integration progresses;

(2) Whereas Article 8 of the Treaty established European citizenship; whereas freedom of movement for workers without impediment is an essential part of this European citizenship;

(3) Whereas the European contribution to national employment policies recognised in the Council Regulation of 15 December 1997 on the 1998 employment guidelines (1) requires the full mobility of workers; whereas mobility provides workers with access to training and work experience in other Member States and is thus an important factor in ensuring adaptability and employability;

(4) Whereas Council Regulation (EEC) No 1612/68 (2), as last amended by Regulation (EEC) No 2434/92 (3) should be adapted to the new socioeconomic and political conditions of the Community; whereas the principles of the case-law of the Court of Justice of the European Communities should be incorporated into the legislative provisions;

(5) Whereas discrimination on grounds of sex, race or ethnic origin, religion or convictions, disability, age or sexual orientation represents an obstacle to the free movement of workers and their families; whereas the integration of migrant workers exercising their right to freedom of movement, and that of their families, into the host country can be seriously impaired by discrimination of this kind; whereas it is therefore essential to prohibit such discrimination within the scope of Regulation (EEC) No 1612/68;

(6) Whereas freedom of movement for workers means full and effective integration of migrant workers exercising their right to freedom of movement, and that of their families; whereas family reunification must be enhanced to ensure that the migrant worker's family is not broken up as a result of free movement;

(7) Whereas the integration of family members will not be complete without true de jure integration; whereas it is therefore necessary to grant rights to family members directly, so that they can themselves assert their entitlement to equal treatment directly, while maintaining the link between those rights and their status as family members;

(8) Whereas family members, particularly those who are not citizens of the European Union, should not be deprived of all legal protection regarding right of residence if the marriage is dissolved; whereas they must therefore be allowed to stay in the host Member State after a period of residence of three years; by which time they can reasonably be considered to be sufficiently integrated into the host State;

(9) Whereas, in the interests of the effective exercise of the fundamental right of freedom of movement for workers and with a view to improving conditions for job creation in the Community, any remaining obstacles to the individual right of workers to free movement should be removed, particularly those arising from territorial conditions which restrict the operation of equal treatment and make it difficult to take into account a worker's professional and personal circumstances which have come into being in a Member State other than the Member State of employment;

(10) Whereas the employment situation in the Community and the employment guidelines underline the need for workers to be able to move freely within the Community to look for work or undertake vocational training courses; whereas these workers should have access to all the openings for supplementary training, retraining and vocational guidance necessary to enhance their employability and adaptability;

(11) Whereas Regulation (EEC) No 1612/68 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 1612/68 is amended as follows:

1. Paragraph 1 of Article 1 is replaced by the following:

'1. Any national of a Member State shall, irrespective of his place of residence, have the right to seek employment, to join a vocational training course or to take up an activity as an employed person and to pursue such activity within the territory of another Member State, in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State`.

2. Article 1a is inserted:

'Article 1a

Within the scope of this Regulation, all discrimination on grounds of sex, racial or ethnic origin, religion, belief, disability, age or sexual orientation shall be prohibited`.

3. A second paragraph is added to Article 5, as follows:

'He shall also be entitled to the recruitment aids available to nationals wishing to take up employment, or to join a vocational training course`.

4. Article 7 is amended as follows:

(a) paragraphs 1, 2 and 3 are replaced by the following:

'1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, particularly as regards health, safety and hygiene, remuneration and dismissal or occupational rehabilitation, reinstatement or re-employment, should he become unemployed or fully or partially unfit for work.

2. A worker who is a national of a Member State shall enjoy the same financial, fiscal, social, cultural and other advantages as national workers.

3. A worker who is a national of a Member State shall, by virtue of the same right and under the same conditions as national workers, have access to all levels of education and university or other vocational training and to vocational rehabilitation, retraining and further training`.

(b) The following paragraph 5 is added:

'5. Where working conditions, professional advancement or certain advantages accorded to workers depend, in a Member State, on the occurrence of certain facts or events, any comparable facts or events which have occurred in any other Member State shall entail the same consequences or confer the same advantages accorded`.

5. Article 7a is inserted:

'Article 7a

A Member State shall not refuse the benefits under Article 7(2) to a national of a Member State who works on its territory while residing outside that territory`.

6. In the first subparagraph of Article 8(1), the second part of the first sentence is replaced by the following:

'he may be excluded from taking part in the management of bodies governed by public law and from holding office governed by public law, only where such functions involve acting in the exercise of the powers of a public authority and safeguarding the general interests of the State or local authorities`.

7. Paragraph 1 of Article 9 is replaced by the following:

'1. A worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy all the rights and benefits accorded to national workers in matters of housing, including ownership of the housing he needs, and loans and grants`.

8. Article 9a is inserted:

'Article 9a

The provisions of Articles 7, 8 and 9 shall apply to any national of a Member State carrying out an activity in the territory of a Member State who is seconded by his employer to the territory of another Member State or to a place outside the territory of the European Union, and to any worker who is a national of a Member State and employed in non-member countries if his employment relationship has a sufficiently close link to the law of a Member State`.

9. Articles 10 and 11 are replaced by the following:

'Article 10

1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse or any person corresponding to a spouse under the legislation of the host Member State, and their descendants;

(b) relatives in the ascending line of the worker and his spouse;

(c) any other member of the family of the worker or that of his spouse who is dependent on the worker or is living under his roof in the Member State whence he comes.

2. Member States shall facilitate the admission of any member of the family not falling within the provisions of paragraph 1 if he is dependent on the worker referred to therein or living under his roof in the country whence he comes.

3. Members of the family entitled to live in a Member State under the terms of paragraphs 1 and 2 shall be entitled to all financial, tax, social, cultural or other advantages available to nationals.

4. Members of the family falling within the provisions of this Article who are not nationals of a Member State retain the right of residence in the Member State of residence if the marriage is dissolved, on condition that they have lived in that country under the terms of this Article for a period of three consecutive years.

The procedure for issuing a residence permit to such members of the family following dissolution of the marriage shall be as laid down in Article 4a of Council Directive 68/360/EEC (*).

Article 11

Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of a Member State, members of his family covered by Article 10 shall have the right to take up any activity as an employed or self-employed person throughout the territory of that same State and to pursue it in accordance with the laws, regulations and administrative provisions governing the employment of workers who are nationals of that State. They retain this right if the marriage is dissolved, on condition that they have lived in the territory under the terms of Article 10(1) for a period of at least five consecutive years.

(*) OJ L 257, 19.10.1968, p. 13`.

10. The first indent of Article 12 is replaced by the following:

'The members of the family of a national of a Member State who is or has been employed in the territory of another Member State who are covered by Article 10 shall be admitted to that State's general educational, apprenticeship and university or non-university vocational training courses under the same conditions as nationals of that State, if they are residing in that territory`.

Article 2

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

(1) OJ C 30, 28.1.1998, p. 1.

(2) OJ L 257, 19.10.1968, p. 2.

(3) OJ L 245, 26.8.1992, p. 1.