the 'Proposal for a European Parliament and Council Regulation amending Council Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community', the 'Proposal for a European Parliament and Council Directive amending Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families', and the 'Proposal for a European Parliament and Council Decision establishing an Advisory Committee on freedom of movement and social security for Community workers and amending Council Regulations (EEC) No. 1612/68 and (EEC) No. 1408/71'
Date: 1999-04-28
Institutions: European Economic and Social Committee
Subjects: free movement of persons, free movement of workers, proposal (EU), residence permit, social security

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Official Journal of the European Communities

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Opinion of the Economic and Social Committee on

— the ‘Proposal for a European Parliament and Council Regulation amending Council Regulation

(EEC) No. 1612/68 on freedom of movement for workers within the Community’,

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

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

(1999/C 169/10)

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

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

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

1.

Introduction

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

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

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

Parliament approved the Commission’s proposals on Regu-
lation (EEC) No. 1612/68 and Directive 68/369/EEC (1) back
in 1989 and has since continued to push for the legal
framework to be strengthened and properly implemented by
the Member States.

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

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

1.4.
lation on the free movement of workers,

Having repeatedly called for an improvement in legis-
the European

(1) Parliament opinion of 14 February 1989 (A3-0013/90).
(2) OJ C 235, 27.7.1998.

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

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

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

2. General comments

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

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

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

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

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

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

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

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

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

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

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

The Committee reiterates the view expressed in its last
2.5.
opinion, that no single market worthy of the name should
pose restrictions on the free movement of workers. This is all

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in the light of

the more essential
the need to enhance
employability, as mentioned in the Luxembourg European
Council’s employment guidelines. The greater availability of
opportunities for training, free of national red tape, represents
a fundamental tool for matching labour supply and demand
more closely, and for enabling the European workforce to
retrain on an ongoing and comprehensive basis, essential in a
period of constant technological change.

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

The Committee echoes

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

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

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

3. Specific comments

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

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

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

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

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

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

If

implemented assiduously,

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

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

(1) Council Decision of 21 December 1998, OJ L 17, 22.1.1999. See

also ESC opinion, OJ C 214, 10.7.1998.

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

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

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

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

3.1.7.
The Committee has frequently drawn attention to
the problem of frontier workers. The amendments to Article
7(a) reinforce the legal security of such workers. Nevertheless,
the Committee would point out that a number of issues still
require definitive or satisfactory answers, and it calls on the
Commission to take action to identify and clarify all outstand-
ing questions, whether or not they are covered by the present
regulation, starting with tax and social security, on the basis of
the Veil and European Parliament (1) reports.

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

In view of

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

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

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

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

least

The

Committee

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

welcomes

therefore

3.2.4.
The perennial problem persists, however, of the visa
requirement throughout the Union, even for short journeys,
for third country nationals, including the family members of
Union citizens, legally resident in a Member State. This issue
has already been raised in the Veil Report and previous
Committee opinions (2).

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

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

(2) ESC opinions: OJ C 153, 28.5.1996; OJ C 157, 25.5.1998; OJ C

235, 27.7.1998.

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

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

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

3.3.1.
In keeping with its earlier opinion and the request
made at the time by the social partners, the Committee

endorses the Commission’s proposal to establish an advisory
committee on free movement and social security, to collate
and rationalize existing structures. It stresses the need for the
new committee to be given full and immediate operational
capacity and to act as a permanent and effective interface
between the social partners and the Commission.

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

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

Brussels, 28 April 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI