Opinion of the Economic and Social Committee on the 'Communication from the Commission on an action plan for free movement of workers'
Date: 1998-05-28
Institutions: European Economic and Social Committee
Subjects: action programme, application of EU law, free movement of workers, labour market, migrant worker

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Opinion of the Economic and Social Committee on the ‘Communication from the Commission
on an action plan for free movement of workers’

(98/C 235/19)

On 2 December 1997 the Commission decided to consult the Economic and Social Committee,
under Article 198 of the Treaty establishing the European Community, on the above-mentioned
communication.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 15 May 1998. The
rapporteur was Mr Vinay.

At its 355th plenary session (meeting of 28 May 1998) the Economic and Social Committee
adopted the following opinion by 85 votes to one, with one abstention.

1.

Introduction

1.1.
Free movement of workers is a cornerstone of
the single market, and the full, effective implementation
of this right will become increasingly important when
economic and monetary union becomes a reality.

The Commission communication presents an
1.2.
action plan which builds on the final report of the High
Level Panel on free movement of persons, set up in 1996
and chaired by Simone Veil. The Panel concluded its
work and presented its comments and recommendations
on 18 March 1997.

are those on the right of residence, family reunion, equal
treatment in general, and, more specifically, those
concerning social security and taxation.

If the labour market is to respond efficiently to
1.7.
the needs of the single market, information must be
readily available to the public and firms, and cooperation
must be stepped up between the Member States’ Public
Employment Services (PES) and the Eures (European
Employment Services) network.

1.7.1.
Special attention should be paid to cross-border
areas, where labour mobility is more common, and
problems pertaining to vacancies, social security and
tax law are more keenly felt.

1.3.
Apart from some subsequent revision, the basic
legal framework for free movement has been in place
since 1968, as the Council did not incorporate the
amendments proposed by the Commission in 1989 and
1990.

1.8.
Ad hoc machinery should be created to boost
and strengthen cooperation between the Member States,
in order to ensure the rules are implemented properly
and to facilitate the solution of problems and conflicts
surrounding the free movement of workers.

1.4.
The High Level Panel now feels that it contains
certain flaws and lacunae, and that the rules should be
thoroughly revised and reinforced to take account of
the extensive case law developed by the European Court
of Justice in this area over recent decades.

1.9.
In order to enhance knowledge and awareness
of the right to free movement, the Commission proposes
specific actions, including seminars and a regular news-
letter for citizens, legal practitioners and national au-
thorities.

The action plan recommends a five-prong strat-

1.5.
egy to:

— improve and adapt the rules;

— make the labour market more transparent;

— strengthen responsibility and cooperation;

1.10.
Finally, the Commission aims to encourage the
presentation of innovative projects to promote free
movement of workers, to be funded under Article 6 of
the ESF Regulation.

2. General comments

— improve knowledge and visibility of the right to free

movement;

— develop innovative projects.

2.1.
The Committee endorses the action plan and
calls on the Commission rapidly to introduce ad hoc
machinery to comply with the comments and conclusions
of the High Level Panel.

Amongst the legal rules which particularly need
1.6.
improving in order to ensure free movement of workers

2.2.
Against the background of an increasingly glo-
balized economy, an ever-expanding European Union
with no internal borders, and the need to find work or

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improve career prospects in another country, increasing
numbers of people are feeling the need to spend
sometimes considerable periods of time working or
studying abroad.

for all European citizens — paying particular attention
to the problems facing people with disabilities — and
also for third country nationals legally resident in a
Member State (1). A bridge must be constructed between
workers’ and citizens’ rights, their Community acquis,
and between social and civil rights.

From the social point of view, there can be no
2.3.
ignoring the implications of all this, both as far as rights,
taxation,
job opportunities, and social security are
concerned, and not forgetting the fate of the migrant
worker’s family, which cannot be subjected to con-
straints on its membership or family ties.

2.4. Whilst these pressing problems cannot be avoid-
ed, the delay in updating the legislative framework in
order to encourage workers’ mobility and take account
of their rights and welfare, is evidence of the complexity
of the issue. It is therefore vital that all parties show
themselves willing to work out concrete solutions which
are acceptable to all.

2.5. Mobility tends to involve the professional classes,
or specific types of workers, e.g. those employed in the
building, hotel and catering trades. Nowadays, however,
there are new reasons for working in another country,
whether it be to acquire work experience, to do volunteer
work, or just to look for a job.

2.6.
Furthermore, intra-EU mobility is increasingly
intense in cross-border areas, which thus find themselves
having to cope first hand with complex situations and
important matters such as welfare and taxation.

2.7. Moreover, the EU’s millions of third country
workers should be borne in mind: the problem of their
rights and welfare must also be addressed.

2.8.
Given the above, it is significant that the High
Level Panel discussed the extent to which the basic
freedom of movement of persons is
principle of
implemented. Consequently, the scope and objectives of
the Commission’s action plan for free movement of
‘workers’ might appear too restrictive. The broad thrust
of the action plan nevertheless is towards a broader
recognition of the term ‘worker’ and a wider application
of the basic principle of free movement, as enshrined in
the Treaty.

2.8.1.
The Committee appreciates the Commission’s
pragmatic attempts to build on and open up existing EU
instruments dealing with the free movement of workers.
However, it considers that a parallel effort should be
made to bolster this initiative with a deeper commitment
to achieving freedom of movement throughout the EU

2.9.
Essentially, the total removal of obstacles to the
free movement and residence of Europeans — and not
just of workers — is a political, social and economic
priority. The Committee therefore calls on the Com-
mission to waste no time in adopting the decisions
needed to achieve this objective.

2.9.1. Moreover, in matters relating to the coordi-
nation of social security schemes, the Committee calls
for Council deliberations to apply the qualified majority
voting procedure, as is the case with other single market
matters.

2.9.2.
The Committee hopes, then, that the Com-
mission initiative will be accompanied by the removal
of the surviving differences of opinion expressed by the
Member States.

2.10. However, the Committee endorses the Com-
mission’s attempt to broaden the scope of Article 48 of
the Treaty of Rome on the free movement of workers.
The Committee particularly supports the Commission’s
attempts to improve and extend the right of residence
for workers looking for employment in another Member
State and to reinforce the right to family reunion of
those who have settled in another EU country. Such
improvements must also be accompanied by proper civic
rights and responsibilities enabling beneficiaries to play
a full part in the society and community where they live.

2.10.1.
At the same time, the Committee is conscious
that the legal framework necessary for such free move-
ment, whilst vital, is only a first step in breaking down
the barriers to mobility. Although some progress has
been made over the years, there is still a considerable
amount of protectionism which undermines freedom of
movement throughout the EU. The High Level Panel
has pointed to the persistence of national protectionist
practices which prevent other EU citizens from having
access to jobs in the public sector, despite the rights
enshrined in the Treaty and EU case law. These practices
should be abolished once and for all.

2.10.2.
Administrative formalities in terms of resi-
dence registration, social insurance and tax are often a

(1) Opinion on the Proposal for a Council Directive on the
right of third-country nationals to travel in the Community:
OJ C 153, 28.5.1996.

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disincentive to free movement. The time frame for
complaints to be processed and solutions to be found to
such obstacles to free movement is about four years,
thus making it impossible to provide a swift response to
the problem. Consequently, a fast track procedure could
be useful here.

2.10.3.
There are still delays and shortcomings in the
implementation of mutual recognition of qualifications,
training and professional experience, and portable occu-
pational pension rights are far from the norm. The
potential of a multicultural, multilingual labour force
which can offer an important competitive advantage in
the internal and global market, is not generally realized.
However,
it must be said that the language skills
challenge is a substantial obstacle to freedom of move-
ment in Europe.

2.11.
In the absence of a better regulated, better
structured and more operational basis for free movement
in the EU, there is a risk of destabilizing competition
within the internal market. Cases of ‘social dumping’
have arisen, involving transfer of employees, not covered
by the posting of workers directive, from one Member
State to another through subcontracting. Such practices
risk provoking yet more national protectionist measures
which threaten individual free movement.

2.12. With reference to future enlargement, the Com-
mittee would point out that the relevant agreements and
Treaties must provide a regulatory framework for
possible flows of labour in the pre-accession and
transition phases.

2.13.
The Committee endorses the High Level Panel’s
proposal to appoint a single Commissioner to coordinate
all free movement issues.

Finally,

it should be emphasized that

2.14.
the
removal of the obstacles to free movement, which can
be achieved by fine-tuning and adapting Community
instruments and through appropriate cooperation
between the Member States, would not only help
promote a more united Europe; it would also be a key
factor in strengthening the foundations of a ‘social
Europe’.

3. Specific comments

a) Improve and adapt the rules

habitual residence in a situation of administrative
uncertainty. The practice of short-term renewal for
people who have spent several periods as a legal resident
in a Member State should be abolished where the periods
total more than one year. This is needed in order to
provide a more transparent, consistent interpretation of
the right to freedom of movement, and to help combat
undeclared work.

3.1.1.
The Committee therefore endorses the Com-
mission’s proposal to amend Directive No 360/68/EC
in line with the case law developed by the European
Court of Justice over recent years.

3.1.2. More generally, the Committee would emphas-
ize the importance of avoiding a situation in which
Community rules are continually out of step with rulings
by the Court of Justice. The case law developed by the
ECJ must act as a further incentive to conclude rapidly
any necessary consolidation and amendment of the
rules. Endorsement of the Commission document thus
takes on a political significance which goes beyond the
— albeit considerable — importance of the communi-
cation’s individual details.

3.2.
As regards the problem of family reunion, which
obviously entails the question of equal treatment and
social integration of the family unit, the Commission is
basically proposing to extend the right to family reunion,
not just on the grounds of emotional ties, but also where
there is an obligation — other than for economic reasons
— to support family members. Clearly, the Committee
welcomes this move.

3.2.1. Many of the above problems are a consequence
of Regulation (EEC) No 1612/68; it is vital that this
should be updated in order to provide a more comprehen-
sive implementation of the right to free movement. In
anticipation of the Commission’s new approach to the
rules, the Committee attaches great importance to any
new provisions guaranteeing completely equal treatment
and full integration in the host Member State for migrant
workers and their families.

The Committee believes in particular that
3.2.2.
Regulation (EEC) No 1612/68 should be amended in
line with consistent developments in ECJ case law
regarding equal treatment in the social, economic, tax
and cultural spheres for all migrant workers and their
families, in full application of citizenship rights.

3.1.
First of all, there is a need to eliminate the flaws
in the legal mechanisms which place EU citizens who
wish to seek work in a country other than that of their

The Committee also recognizes the particular
3.2.3.
social significance of the High Level Panel’s proposal to

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abolish visas for third country nationals who are related
to an EU worker, and would point out that it has
expressed this view on a previous occasion.

For frontier workers, the following problems are

3.3.
particularly important:

— social security, owing to the different criteria applied
to frontier workers and their families in respect of
invalidity, unemployment and healthcare benefits,
etc.;

— taxation, since the tax regimes of the country of
residence and the country of employment overlap.

3.3.1.
The Commission document provides no indi-
cation of any instruments which might solve frontier
workers’ social security problems; it merely states that
‘specific provisions ... should be adopted’, and that a
proposal to reform and simplify Regulation (EEC)
No 1408/71 will be presented to the Council before the
end of 1998. The Committee awaits details of the
Commission proposal.

In the absence of a specific Community regime,
3.3.2.
taxation is regulated by bilateral agreements between
individual Member States; the only guidelines are to be
found in Article 220 of the Treaty, on the abolition of
double taxation. The Committee calls on the Com-
mission to carry out a thorough assessment of how these
taxation agreements work in practice, with a view to
drafting a model agreement, to be submitted to the
Member States.

3.4.
There are many reasons why Regulation (EEC)
No 1408/71 needs amending; more generally, there is a
need to simplify and improve coordination of EU social
security systems, and bring them in line with social,
economic, demographic and cultural changes.

3.4.1.
The Committee takes this opportunity to call
for this simplification procedure to respect in full the
rights acquired by the individual worker, and the
specific features of each socio-economic, national and
professional context, thus enabling workers to enjoy full
seniority rights, and have their vocational qualifications
recognized throughout their careers. Finally, simplifi-
cation must make freedom of movement easier, and aim
to provide equal treatment for all citizens.

3.4.2.
The modernization process must take into
account the large number of coordinated national
systems, and bring the various provisions of the Regu-
lation in line with ECJ case law; it must overcome

existing difficulties arising from legislative discrepancies,
reword certain provisions, e.g. on unemployment, and
incorporate new Community measures relating to issues
such as the scope of directives on residence rights, and
to areas excluded thus far, such as early retirement and
special schemes for civil servants.

3.4.3.
In order to bridge the remaining gaps, agree-
ments must be concluded as soon as possible between
the EU and third countries which are particularly
affected by worker mobility — starting with Switzerland,
and extending to other countries which are concerned
by the problem to a lesser extent.

3.4.4. Moreover, the Committee would reiterate the
view expressed in its opinion on the Commission
Communication on modernizing and improving social
protection in the European Union (1), that improved,
more efficient social protection can help promote and
strengthen the economy.

3.5.
The Committee also endorses the Commission
proposal amending Regulation (EEC) No 1408/71 to
strengthen and improve the legal status of third country
nationals who are legally resident in the Community,
which was formally presented last November, in con-
junction with the action plan (2).

3.5.1.
The Committee has already expressed a favour-
able view of this proposal (3), stressing that the regulation
will apply the principles of non-discrimination, and
provide an instrument to combat illegal and undeclared
work.

3.6.
The Commission also refers to the proposal for
a Directive on supplementary pensions. Although the
Committee endorsed the proposal (4), it considered it as
just the first step towards achieving total freedom of
movement as regards supplementary pension rights.

3.6.1.
It should be stressed once again that the
proposal concerns mainly workers on temporary detach-
ment. It does not solve important stumbling blocks to
the wholesale transferability of supplementary pensions,

(1) OJ C 73, 9.3.1998.
(2) OJ C 6, 10.1.1998.
(3) Opinion on the proposal for a Council Regulation (EC)
amending Regulation (EEC) No 1408/71 as regards its
extension to nationals of third countries, OJ C 157,
25.5.1998.

(4) Opinion on the proposal for a Council Directive on
safeguarding the supplementary pension rights of employed
and self-employed persons moving within the European
Union, OJ C 157, 25.5.1998.

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such as minimum contribution periods, difficulties in
transferring acquired rights, taxation, etc.

3.6.2.
The Committee is aware of the wide variety of
national regulations in this area, but regards supplemen-
tary pensions as a fait accompli throughout the Member
States, particularly given the cuts made to state pension
systems.

3.7.
Freer and more frequent movement of workers
could also be achieved through improved education and
training. The Commission’s commitment in this area
has already led to a green paper (1), which identifies the
obstacles to transnational mobility in terms of language,
lack of information, and corporate reluctance to employ
young trainees. The Committee has already adopted an
opinion on the green paper (2).

3.7.1.
Improving the language skills of all citizens
should be a priority, and the Committee would take this
opportunity to stress the need to boost all Community
programmes for the promotion of multi-lingualism
and cultural exchanges, particularly the Socrates and
Leonardo programmes.

3.7.2.
The Committee is in favour of the arrangements
to promote mobility for apprentices in Europe, and has
already given its views on the promotion of European
pathways for work-linked training.

3.7.3.
The Committee therefore calls on the Com-
mission and the Member States to strive towards full
mobility not just for students, but also for apprentices
and trainees on courses with a transnational dimension,
on an equal footing with people who already enjoy
freedom of movement under the terms of Article 48 of
the Treaty.

3.7.4.
Finally, these comments cannot ignore the
urgent need for measures to overcome the remaining
obstacles and shortcomings as regards the mutual
recognition of diplomas, technical and vocational quali-
fications, and professional experience, or the need for
constant Community-level monitoring of developments
in each Member State; the social partners could also
help in this.

b) Employment market: management, cooperation,

information

network has been up-and-running since 1994, and, with
the help of advances in technology and operational
procedures to date, has proved to be an extremely useful
tool in promoting and improving cooperation between
the public employment services of the various Member
States, collating information from a wide range of
sources, and providing information and advice. The
Eures network, should, however, be extended and
reinforced, by raising its profile, improving the quality
and quantity of the information, e.g. providing workers
with advice and instruments to facilitate their smooth
integration in the working environment, and enabling
them, via specific procedures, to put their CVs on line.

3.8.1.
Eures must not be restricted to pooling infor-
mation on labour supply and demand; it should actively
promote vocational training for frontier workers in
particular, access to the labour market, and social
welfare issues.

3.8.2.
The Committee would highlight the important
role Eures could play in overcoming obstacles to the
free movement of workers. The Committee stresses the
need for the network to enhance and strengthen the role
of the social partners, who are vital players in the
dialogue and consultation procedures on employment
problems. The social partners could act in concert —
particularly in frontier regions — to find solutions to
the problems facing workers who go abroad. However,
the Commission should heed the call made by several
ITUCs (3) for the existing consultative committees to be
used more efficiently and consistently. As regards the
role of the social partners here and elsewhere, the
Committee feels it should reiterate its call for them to
be involved systematically in Community programmes
and initiatives (4).

3.8.3.
The Commission intends to promote specific,
information campaigns targeting the general public,
labour market players,
legal practitioners and the
national authorities, to raise awareness of the right
to freedom of movement. Here too, the problem of
strengthening the Eures network, and the appointment
and role of the Euroadvisors, needs to be addressed.

3.8.4. With regard to the action plan’s various sugges-
tions for improving information on job vacancies at
European level, the Committee particularly agrees that
cooperation between employment agencies should be
stepped up, including via the Internet.

3.8.
The right to free movement must also be con-
sidered in the light of a common employment strategy
and a pro-active labour market policy. The Eures

3.8.4.1.
As the High Level Panel also pointed out,
closer cooperation between national authorities could
solve many mobility-related problems. The Commission

(1) COM(96) 462.
(2) Opinion on the Green Paper on education, training,
research — the obstacles to transnational mobility: OJ
C 133, 28.4.1997.

(3) Interregional Trades Union Councils.
(4) Opinion on the role of the socio-economic partners in the
various frontier regions and in the Interreg programmes
and the Eures network: OJ C 355, 21.11.1997.

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intends to suggest Member States set up contact points
within their administrations to deal directly with the
Commission on specific, urgent obstacles to free move-
ment. The Committee endorses the proposal, but feels
that any special contact points for migrant workers
should be set up within the Eures network, in order to
avoid overlapping. The contact points must provide
rapid, efficient solutions to problems relating to access
to public sector employment, social benefits and the
right to pool contributions.

3.8.4.2.
The Commission suggests that the two Advi-
sory Committees on free movement and social security
for migrant workers should merge, in order to improve
efficiency and effectiveness. The Committee endorses
the proposal, providing the new body is given greater
operational capability, and does, in effect, provide a
more effective interface between the social partners and
the Commission.

3.8.5.
There is, of course, a strong case for launching
initiatives to make EU citizens more aware of the right
to free movement, but better information on how the
right is currently implemented would also be useful.
The Commission should, therefore, provide a more
detailed analysis of the current state of play as regards
the free movement of workers, focusing particularly on
levels of qualification, salary scales, and type of work.
The High Level Panel’s report referred to this key
assessment factor, and emphasized the need for a
management forecast of the qualifications the labour
market will need (1).

(1) Report of the High Level Panel on the freedom of movement

of persons, chaired by Simone Veil, p. 42.

Brussels, 28 May 1998.

In order

3.8.6.
to boost employment potential
through worker mobility, the action plan provides for
the use of funding under Article 6 of the ESF for
innovative projects for training, redeployment or sup-
port for young jobseekers.

3.8.7. Whilst the Committee endorses this initiative,
which aims to provide new opportunities for employ-
ment promotion and to remove the obstacles to free
movement, it hopes the projects will not be implemented
piecemeal, but that they will be framed as part of a
systematic, integrated strategy capable of impacting on
the structure of national systems. However, it would
point out that synergies could already be activated
between the Eures and Interreg programmes to provide
an efficient interface between training projects and the
labour market. Similarly, significant potential could be
unleashed by boosting the synergies between Eures and
other Community programmes.

4.
The Committee is wholeheartedly convinced of
the need to enhance freedom of movement, and intends
to take an active part in preparations for the European
Conference on the free movement of workers, scheduled
for mid-1998 to mark the thirtieth anniversary of the
1968 Regulation.

4.1.
The Committee calls on the Commission and the
Council to press ahead with any initiatives which might
be needed to make the right to free movement fully
practicable, in order to make this a genuine right for all
citizens.

Finally, the Committee would emphasize that
4.2.
the free movement of workers and citizens is one of the
objectives which must be pursued — particularly via the
provision of the requisite regulatory and labour market
measures — in order to achieve a fully operative single
market.

The President

of the Economic and Social Committee

Tom JENKINS