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
Date: 2013-04-26
Institutions: European Commission
Subjects: access to education, child of migrant, equal treatment, job access, labour mobility, severance pay, social integration, subsidised housing, trade union freedom, vocational training, worker (EU), working conditions

EUROPEAN 
COMMISSION 

Brussels, 26.4.2013  
SWD(2013) 149 final 

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 

{COM(2013) 236 final} 
{SWD(2013) 148 final} 

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   EN 

 
 
 
 
  
 
TABLE OF CONTENTS 

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

1. 

1.1. 

1.2. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

3. 

INTRODUCTION ....................................................................................................... 4 

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

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

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES... 6 

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

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

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

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

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. 

3.6. 

4. 

4.1. 

4.2. 

5. 

5.1. 

5.2. 

5.3. 

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

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

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

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

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

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

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

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

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

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5.4. 

5.5. 

Option 4: Directive introducing support measures for EU migrant workers 

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

5.6. 

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

6. 

6.1. 

6.2. 

6.3. 

6.4. 

6.5. 

7. 

8. 

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

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

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

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

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

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

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

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

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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  492/20111  (former 
Regulation  1612/682).  Other  legislative  acts  having  an  impact  on  the  free  movement  of 
workers have been adopted at EU level, such as the residence directive3, the directive on the 
recognition of professional qualifications4, the provisions on social security5 or the directive 
on supplementary pension rights6. 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.  

1 

2

3

4 

5 

6 

Regulation  (UE)  No  492/2011  of  the  European  Parliament  and  of  the  Council  of  5  April  2011  on  freedom  of  movement  for 
workers within the Union (codified version) 
Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community 
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and 
their  family  members  to  move  and  reside  freely  within  the  territory  of  the  Member  States  amending  Regulation  (EEC)  No 
1612/68  and  repealing  Directives  64/221/EEC,  68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC, 
90/365/EEC and 93/96/EEC 
Directive  2005/36/EC  of  the  European  Parliament  and  of  the  Council  of  7  September  2005  on  the  recognition  of  professional 
qualifications 
Regulation  (EC)  No  883/2004  of  the  European  Parliament  and  of  the  Council  of  29  April  2004  on  the  coordination  of  social 
security systems and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying 
down the procedure for implementing Regulation (EC) No 883/2004 
Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed 
persons moving within the Community  

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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 regards7: 

-  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  Union8  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.  

7 
8 

For a more detailed description of the rules on free movement of workers, see annex 2 
The expressions 'EU migrant workers' and 'mobile workers' used along this text must be understood as 
being synonym and as referring only to EU citizens 

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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  Union9.  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 them10.  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  regard11.  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 
research12 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 201013 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 492/201114. 

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 

9 
10 
11 

12 

13 
14 

http://ec.europa.eu/commission_2010-2014/president/pdf/press_20090903_en.pdf  
EU Citizenship Report 2010: Dismantling obstacles to EU citizens' rights, COM(2010) 603 final 
Draft  report  from  the  European  Parliament  on  the  single  Market  through  the  lens  of  the  people:  a 
snapshot of  citizens'  and  businesses'  20  main  concerns, of  February 20112; report  from  the  European 
Parliament  on  promoting  workers'  mobility  within  the  European  Union,  of  July  2011;  opinion  of  the 
European Economic and Social Committee on the identification of outstanding barriers to mobility in 
the  internal  labour  market  of  March  2009;  conclusions  of  the  EPSCO  Council  of  March  2009  on 
professional and geographical mobility of the workplace and the free movement of workers within the 
European Union; report from MEP A. Lamassoure "The citizen and the application of Community law" 
of June 2008 
Report  from  the  Commission  to  the  Council  on  the  functioning  of  the  Transitional  Arrangements  on 
Free Movement of Workers from Bulgaria and Romania – COM(2011)729 final of 11.11.2011 
COM(2010)373 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  on  Regions  "Toward  a  job-rich  recovery", 
COM(2012) 173 final of 18.4.2012 

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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 201215. 

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 Union16. Beyond this regular 
reporting, the network has provided two specific reports on the application of EU rules in the 
field. The first report17, 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  one18, 
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 

15 

16 

17 

18 

Study to analyse and assess the impact of possible EU initiatives in the area of freedom of movement 
for workers, in particular with regard to the enforcement of current provisions, by Ramboll, annexed to 
this report; not yet published  
The Annual European Reports provided by the network since 2006 are available at the following link: 
http://ec.europa.eu/social/keyDocuments.jsp?type=0&policyArea=25&subCategory=475&country=0&
year=0&advSearchKey=consolidated+report&mode=advancedSubmit&langId=en 
They  are  based  on  annual  national 
reports 
http://ec.europa.eu/social/keyDocuments.jsp?type=0&policyArea=25&subCategory=475&country=0&
year=0&advSearchKey=%22national+report%22&mode=advancedSubmit&langId=en 
Thematic 
http://ec.europa.eu/social/main.jsp?catId=475&langId=en 
This report has not yet been published 

for  each  Member  State,  available  at 

"Application 

Regulation 

1612/68", 

January 

report 

2011 

of 

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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 level19. 

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. 

19 

A  summary  of  the  replies  received  is  included  in  the  second  report  form  the  network  of  independent 
experts on free movement of workers on the enforcement of Regulation 492/2011, not yet published.  

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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 sector20.  

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.  

20 

EN 

e-government 

The 
portals 
http://ec.europa.eu/internal_market/eu-go/index_en.htm  

part 

are 

of 

the  EUGO 

network 

and 

are 

listed 

at 

9 

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Reports  from  experts  in  the  field  of  free  movement21  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 practices22 

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a
n

5
s
n
o

i
t
a
i
c
o
s
s
a

f
o

e
l
o
R

6
n
o

i
t
a
s
i
m

i
t
c
i
V

d
e
s
r
e
v
e
R

f
o
n
e
d
r
u
b

7
f
o
o
r
p

8
s
n
o
i
t
c
n
a
S

-
s
s
e
n
e
r
a
w
A

9
g
n
i
s
i
a
r

i

g
n
d
u
l
c
n

i

S
M

AT 

Potentially4 

Yes 

Yes 

Yes 

No 

Yes 

BE 

Jurisdiction 

Yes 

Yes 

Yes 

Yes 

Yes 

BG 

Yes  

CY 

CZ 

Yes1 

DE 

Yes2 

DK 

Yes2 

EE 

Potentially3 

Yes 

Yes 

Yes 

No 

Yes (under ethnic 
origin) 

Yes (under ethnic 
origin) 

Yes 

Yes 

No 

Yes 

Public authority 

Yes 

Yes 

No 

Yes 

No 

No 

Yes 

Yes 

No 

Yes 

No 

No 

Trade Union 

Yes 

No 

No 

No 

No 

No 

Yes 

Yes 

Public authority 

21 

22 

Thematic report from the European network on free movement of workers "Application of Regulation 
1612/68" integrated with information from two reports on Equality Bodies gathered by the legal experts' 
networks on gender equality and antidiscrimination.  
Source:  thematic  report  from  the  European  network  on  free  movement  of  workers  "Application  of 
Regulation 1612/68" integrated with information from two reports on Equality Bodies gathered by the 
networks of legal experts on gender equality and antidiscrimination. 

EN 

10 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
EL 

Yes2 

ES 

Yes  

FI 

Yes  

FR 

Yes  

No 

No 

Yes 

Yes 

Yes 

No 

No 

No 

Yes 

Yes 

No 

Yes 

Yes 

Yes 

Yes 

Yes 

Trade Union 

Yes 

Yes 

No 

Yes 

Trade Union 

HU 

Jurisdiction 

Yes 

Yes 

No 

Yes 

No 

No 

No 

Yes 

Trade Union 

Yes 

Trade Union 

IE 

Yes  

IT 

Yes  

LT 

Yes  

Yes 

Yes 

Yes 

Yes 

Yes 

No 

Yes 

Trade Union 

Yes 

Yes 

No 

Yes 

Public authority 

LU 

Potentially4 

No 

Yes 

No 

No 

Yes 

LV 

Potentially3 

Yes 

Yes 

Yes 

Yes 

Yes 

Public authority 

MT 

NL 

Yes  

PL 

Yes  

PT 

Yes  

RO 

Yes2 

SE 

Yes2 

SL 

SK 

Yes1 

UK 

Yes2 

No 

Yes 

Yes 

Yes 

Yes 

Yes 

No 

No 

No 

No 

Yes 

Yes 

No 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

No 

No 

Yes 

Public authority 

Yes 

Yes 

Yes 

Yes 

Yes (under ethnic 
origin) 

Yes 

Yes 

No 

Yes 

Public authority 

Yes 

Yes 

Yes 

No 

No 

Yes 

Yes 

No 

Yes 

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 

EN 

11 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
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 own23.  

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 mobility24, 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 comparisons25 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 tapped26. 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  Commission27  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.  

23 
24 

25 
26 
27 

EN 

n° 

Eurostat, EU-Labour force survey 
Eurobarometer 
and 
337 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_337_en.pdf 
See for instance OECD, Economic survey of the EU, 2012 
http://ec.europa.eu/social/main.jsp?langId=en&catId=113&newsId=1389&furtherNews=yes 
http://ec.europa.eu/social/main.jsp?langId=en&catId=113&newsId=1389&furtherNews=yes 

"Geographical 

market 

labour 

mobility" 

12 

   EN 

 
                                                 
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 201128 

Member State 

EU migrant workers (in thousand) 

Share among total employment (in %) 

Austria 

Belgium 

Bulgaria 

Cyprus 

Czech Republic 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Ireland 

Italy 

Latvia 

Lithuania 

Luxembourg 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

203.3 

300.9 

N/A 

48.5 

36.0 

70.0 

N/A 

24.9 

637.3 

1,528.8 

71.1 

21.5 

160.8 

740.5 

N/A 

N/A 

100.6 

1.9 

149.7 

8.9 

27.8 

N/A 

2.9 

N/A 

768.8 

118.3 

4.9 

6.7 

N/A 

12.9 

0.7 

2.6 

N/A 

1.0 

2.5 

3.8 

1.7 

0.6 

8.9 

3.2 

N/A 

N/A 

44.8 

1.1 

1.8 

0.1 

0.6 

N/A 

0.1 

N/A 

4.2 

2.5 

28 

Source : Eurostat, EU-LFS, annual data 

EN 

13 

   EN 

 
                                                 
United Kingdom 

EU-27 

1,328.9 

6,357.7 

4.6 

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 abroad29 close 
to three quarters do not plan to do so and 10% of European citizens are unsure30.  

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 networks31 

Country 

CHAP32 

Infringements  Europe Direct 

29 
30 

31 
32 

See tables 2 and 3 included in annex 1 
In  2011  another  Eurobarometer  survey  launched  by  DG  MARKT  recorded  a  higher  rate  of  potential 
mobility in the future (28% at EU level). The difference is mainly due to the fact that the question asked 
was  less  specific  ("Would  you  consider  working  in  another  EU  Member  State  than  (OUR 
COUNTRY)?" versus "Do you envisage to work in a country outside (OUR COUNTRY) at some time 
in the future?" in the 2009 Eurobarometer).  
Source: European Commission 
Total of cases received through the Commission's complaint handling system, CHAP, assigned to Unit 
EMPL B4, covering both free movement of workers and the coordination of social security schemes. 

EN 

14 

   EN 

 
 
                                                 
 Year 

2010 

2011 

2010 

2011 

2010 

2011 

Austria 

13 

37 

22 

18 

18 

106 

8 

4 

5 

0 

5 

0 

3 

17 

30 

4 

2 

5 

2 

1 

1 

7 

5 

4 

1 

0 

1 

19 

5 

Belgium 

Bulgaria 

Cyprus 

Czech 
Republic 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Ireland 

Italy 

Latvia 

Lithuania 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

United 
Kingdom 

Luxembourg  10 

47 

18 

Non-EU 

0 

Un-specified  0 

0 

0 

3 

3 

2 

3 

1 

6 

0 

4 

19 

17 

8 

0 

2 

0 

2 

0 

1 

0 

0 

0 

0 

2 

0 

4 

0 

0 

0 

1 

0 

0 

0 

0 

0 

0 

2 

0 

6 

0 

0 

0 

0 

5 

3 

15 

6 

2 

2 

3 

0 

9 

6 

0 

0 

3 

1 

1 

0 

1 

0 

0 

0 

3 

1 

3 

0 

0 

0 

0 

1 

2 

2 

0 

0 

0 

0 

1 

3 

1 

3 

0 

0 

48 

66 

72 

4 

16 

40 

63 

63 

12 

23 

14 

12 

1 

6 

8 

8 

176 

288 

306 

233 

37 

36 

17 

9 

11 

4 

3 

55 

20 

34 

83 

11 

4 

39 

30 

10 

59 

5 

10 

4 

3 

52 

27 

24 

48 

10 

5 

206 

161 

14 

95 

11 

78 

60 

39 

124 

132 

Total 

236 

159 

40 

40 

1638 

1497 

EN 

15 

   EN 

 
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 State33 (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  benefits34.  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.  

33 

34 
35 

Thereby  over  a  third  of  the  respondents  to  the  public  consultation  were  nationals  of  Bulgaria  and 
Romania. This overrepresentation can be explained by the approaching end of the second phase of the 
transitional  arrangements  applying  to  nationals  of  these  Member  States  and  a  consequent  specific 
awareness of these populations.  
Data from the public consultation. See annex 7 
Eurobarometer  363  "Internal  Market:  Awareness,  Perceptions  and  Impacts",  September  2011 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_363_en.pdf  

EN 

16 

   EN 

 
 
                                                 
The  Eurobarometer  Qualitative  Study  "Obstacles  citizens  face  in  the  Internal  Market"  of 
September 201136 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  level37.  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.  

36 

37

Eurobarometer qualitative Studies. "Obstacles citizens face in the Internal Market – Aggregate Report", 
September 2011 http://ec.europa.eu/public_opinion/archives/quali/ql_obstacles_en.pdf  
This rate of over-qualification is measured by adding up the workers being in occupations that require a 
lower educational attainment than the one they currently have (i.e. high-skilled working in intermediary 
and low-skilled occupations and medium-skilled working in low-skilled occupations). This is based on 
a  classification  of  ISCO  occupations  in  three  groups:  those  requiring  high  skills  (ISCO  1-3),  those 
requiring intermediate skills (ISCO 4-8) and the low-skilled occupations (ISCO 9). The share of each 
group of occupations is compared to the distribution of the educational level: high skilled (ISCED 5-6), 
medium (ISCED 3-4) and low (ISCED 0-2).  

EN 

17 

   EN 

 
                                                 
 
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. 

EN 

18 

   EN 

 
 
 
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 

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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 

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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.  

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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  Eurobarometer38  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 

38 

Eurobarometer  363  “Internal  Market:  Awareness,  Perceptions  and  Impacts”,  September  2011 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_363_en.pdf 

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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 directive39 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 applicable40. 

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 

– 

– 

39 

40 

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. 

"The Racial Equality Directive: application and challenges", 2012. FRA - European Union Agency for 
Fundamental Rights 
See section 3.1.1 

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– 

– 

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  activity42.  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). 

41 
42 

Eurostat, EU-LFS, see table 4 in annex 1 
See table 5 in annex 1 

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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  Union43,  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 services44. There is a clearly rising 
intolerance  towards  EU  migrant  workers,  as  shown  by  several  surveys45  and  by  specific 
actions  identified  across  Europe46,  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  Inclusion47,  through  EURES  and  other 
Commission  information  tools  such  as  the  Your  Europe  Portal,  Your  Europe  Advice  and 
EURAXESS48.  A  more  specialised  audience  can  be  reached  through  the  activities  and 
publications  of  the  network  of  independent  experts  on  free  movement  of  workers49  and 

43 
44 
45 

46 

47 
48 

49 

http://www.oecd.org/economy/economicsurveysandcountrysurveillance/49950244.pdf  
Policy paper on Social services and migration from the NGO Eurodiaconia 
The special Eurobarometer  317 on Discrimination in the EU in 2009, of November 2009, shows that 
discrimination on the grounds of ethnic origin is seen by the majority of Europeans as widespread 
See, for instance, the Internet site set up by of a political party in the Netherlands encouraging people to 
report complaints arising from the ‘massive labour migration’ of ‘Central or Eastern European citizens’, 
and asking, in particular, whether they have lost their jobs to one of those citizens;  
http://ec.europa.eu/social/main.jsp?langId=en&catId=457 
The  Your  Europe  Portal  offers  information  and  advice  on  EU  rights  for  EU  nationals  and  businesses 
(http://europa.eu/youreurope/index.htm).  Your  Europe  Advice  is  an  EU  advice  service  for  the  public 
currently  provided  by  independent  legal  experts  on  rights  awarded  to  individuals  under  EU  law, 
including rights related to free movement of workers. EURAXESS is an European initiative providing 
access  to  a  complete  range  of  information  and  support  services  for  European  (and  non-European) 
researchers wishing to pursue research careers in Europe.  
http://ec.europa.eu/social/main.jsp?catId=475&langId=en 

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reports  published  by  other  experts  with  the  support  of  the  Commission50.  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.  

50 

EN 

For instance, the report prepared by Professor J. Ziller "Free movement of European Union citizens and 
employment 
2010 
http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=956&furtherNews=yes 

sector" 

public 

the 

of 

in 

26 

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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. 

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– 

– 

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  strategy51:  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 Charter52 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 

51

52

Communication  from  the  Commission  "Strategy  for  the  effective  implementation  of  the  Charter  of  fundamental  rights  by  the 
European Union", COM(2010)573 final of 19 October 2010 
The specific provisions of the Charter concerned are mentioned in section 3.6 

EN 

28 

   EN 

 
                                                 
 
 
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 

53 

For  instance:  Communication  from  the  Commission  "Reaffirming  the  free  movement  of  workers:  rights  and  major 
developments", of 13.07.2010 (COM(2010)373 final); Commission staff working document "Free  movement of workers in the 
public sector" of 14.10.2010 (SEC(2010)1609 final) 

EN 

29 

   EN 

 
                                                                                                                                                         
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 
recommendations.  

reports  and 

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  

EN 

30 

   EN 

 
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. 

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31 

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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  

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32 

   EN 

 
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 

EN 

33 

   EN 

 
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 

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34 

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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 201054. 
All Member States have structures or bodies that deal with discrimination on other grounds55. 
Enlarging their scope of action in the eight Member States56 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 

54 
55 

56 

See annex 6  
Equality bodies linked to transposition of EU Directives covering discrimination on the basis of race, 
ethnicity, gender (Directives 2000/43/EC and 2006/54/EC) 
Germany, Estonia, Greece, Spain, Luxembourg, Malta, Slovenia, the Netherlands 

EN 

35 

   EN 

 
                                                 
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 would furthermore have positive impact on the protection of EU migrants, who 
would be able to rely on the support of independent third parties. Moreover, setting up similar 
bodies in all the European Union would ensure that citizens have access to their support and 
information  in  every  Member  State.  In  France,  for  instance,  the  former  HALDE  did  not 
represent  the  victims  in  court,  but  could  provide  analysis  and  recommendations  on  a  case 
brought  to  court.  This  was  considered  to  be  very  useful:  the  analysis  and  recommendations 
were  followed  by  courts  in  approximately  80%  of  cases,  and  some  judges  went  directly  to 
HALDE to ask for an analysis of the situation. 

Legal action by associations and organisations which are already active in the field may help 
reducing the financial and personal burden on individual citizens, giving them greater access 
to justice. For the EU migrant workers it would be another incentive to claim their rights as 
they would not be obliged to look for a specialised lawyer, etc. They would also feel stronger 
and more likely to win their cases when being backed by an organisation. 

The  results  of  the  activities  of  the  supporting  bodies  could  also  be  transmitted  to  the 
Commission, enabling it to launch infringement procedures if appropriate. 

Impact on stakeholders 

The supporting bodies will have the possibility of assisting enterprises when they need advice 
on  specific  questions  related  to  free  movements  of  workers'  rights  or  when  they  need 
assistance  on  how  to  establish  an  equality  policy  or  equality  rules  within  their  own 

EN 

36 

   EN 

 
undertakings. This function will be especially at the benefit of SMEs, which do not normally 
have access to his kind of expertise. Furthermore, the supporting bodies will also be able to 
provide advice to trade unions, e.g. in view of the adoption of collective agreements and their 
impact on EU workers. 

Providing the possibility for associations and organisations to take legal action on behalf or in 
support of EU migrant workers in the three Member States where this is not yet done57 would 
increase the number of stakeholders involved in the fight against the discrimination. Although 
the organisations may not have the financial means to take on all of the cases, the accessibility 
of local bureaus will increase access to legal representation. The role of trade unions and other 
organisations in assisting EU workers would be strengthened, thus giving them more visibility 
and providing the same possibilities in all Member States, as currently the role they can play 
depends  very  much  on  the  national  context  (i.e.  in  some  countries,  these  organisations  are 
stronger than in others).  

Overall the social impact would be positive. Discrimination on the basis of nationality should 
be reduced leading to equal working conditions, easier access to employment, equal access to 
social benefits, thus better quality of life for migrant workers and members of their family and 
a full participation in the society and the labour market of the host Member State.  

Fundamental rights 

Legally  binding  instruments  aimed  at  improving  the  enforcement  of  rights  as  well  as 
providing for information and assistance to EU workers would positively affect fundamental 
rights such as the freedom to choose an occupation and the right to engage in work  (article 
15), non-discrimination (article 21), fair and just working conditions (article 31) and freedom 
of movement (article 45). 

Providing means of redress and enabling third parties to intervene in support to EU workers 
would positively affect the right to an effective remedy and to a fair trial (article 47). 

Economic impact 

National authorities 

1) Cost of implementation 

The  setting  up  of  supporting  bodies  or  structures  for  EU  migrant  workers  would  involve 
implementation  costs  for  national  authorities. However,  as  identifying  the  body  that  will  be 
assigned the new functions will be left to Member States, the actual costs will vary according 
to  whether  a  whole  new  structure  is  created  or  whether  existing  bodies  (e.g.  the  equality 
bodies  or  other  bodies  responsible  for  discrimination  on  other  grounds)  are  conferred  the 
responsibilities  set  up  by  the  directive.  All  27  Member  States  have  currently  specific 
structures that deal with discrimination on several grounds. If Member States decide to confer 
them  the  tasks  of  fighting  against  discrimination  on  the  grounds  of  nationality,  the 
implementation  costs  would  be  limited  to  the  extension  of  their  role  in  the  eight  Member 
states  where  nationality  is  clearly  not  part  of  their  responsibilities  and  ensuring  that  this 
ground  is  indeed  covered  in  the  14  Member  States  where  up  to  now  nationality  could  be 
included  under  other  grounds.  The  implementation  costs  will  also  depend  on  the 
comprehensiveness of the services provided (e.g. would SME get standardised or tailor-made 
advice or not be addressed at all; how extensive eventual awareness raising campaigns would 
be), and the labour costs in each Member State. 

57 

Germany, Estonia, Malta 

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37 

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Ireland is one  of the cases where  discrimination on the grounds of nationality  is part of the 
activities  carried  out  by  the  Equality  Body.  The  research  conducted  shows  that  recurring 
administrative costs associated with the obligation to provide information amounted to around 
EUR  340,000  in  201058.  However,  it  has  to  be  kept  in  mind  that  this  amount  relates  to  the 
obligation  to  provide  information  on  equality  in  general,  therefore  including  not  only 
nationality  but  also  race,  religion,  sex,  etc.  Of  the  enquiries  received  by  this  Equality 
authority, around 1% are linked to nationality. annex 5 contains a detailed description of the 
means (including staff) available and of the actions developed by the Equality Body in Ireland 
and their related costs.  

In Sweden, in the first half of 2011, around one third of the cases (341 out of 969 complaints) 
handled by the Equality Ombudsman concerned ethnic discrimination. Based on this, it could 
be  assumed  that  one-third  of  the  organisation’s  budget  was  spent  on  complaints  related  to 
ethnicity  (with  no  distinction  made  between  EU  or  non-EU  migrants).  In  2010,  out  of  152 
enquiries received by the Regional State administrative Agency for Southern Finland, around 
11% were linked to nationality or ethnic origin.  

From these diverse national experiences, it is difficult to single out the costs directly and only 
related to the rights of EU migrant workers. Based on the experience in countries which have 
already  established  bodies  dealing  with  discrimination  based  on  nationality,  the  increase  in 
workload (and connected human resources) for the Member States which will have to extend 
the scope of activity of their existing structures can be estimated at no more than 5 to 10%59. 

2) Cost of legal action 

In the medium term this option might lead to an increase in the number of court cases. It is 
however difficult to predict the extent of this development: following the increased awareness 
and  support,  citizens  might  become  more  sensitive  and  go  to  court  more  often.  This  could 
have  a  further  positive  impact  on  employers'  awareness  that  discrimination  of  migrant 
workers is not only unfair but will also be prosecuted and therefore incur costs. The impact on 
the  number  of  court  cases  will  vary  from  Member  State  to  Member  State  depending  on 
national  procedural  rules  and  fees  as  well  as  on  the  number  of  cases  solved  through 
mediation. It is not expected that this will create a strong pressure on the judicial systems, as 
such an increase was not noted in the Member States where the measures are already in place.  

In  the  long  term  however,  the  measures  proposed  in  the  directive  are  expected  to  have  a 
preventive  effect  and  reduce  costs  linked  to  legal  action.  This  seems  to  be  the  case  in 
countries where supporting bodies covering discrimination on the basis of nationality already 
exist:  on  average,  the  eight  Member  States  where  such  bodies  are  not  yet  in  place  are  each 
concerned  by  2.75  current  active  infringement  cases  launched  by  the  Commission,  while 
countries where bodies exist have 1.5.  

Enterprises 

No  implementation  costs  have  been  identified  for  enterprises  under  this  policy  option. 
However,  the  increased  support  to  workers  may  lead  to  an  increase  of  court  cases  and 
therefore costs for companies that discriminate. 

No impacts on sector competitiveness have been identified because of the broad distribution 
of mobile workers across economic sectors (see annex 1, tables 1.5 and 1.6).  

Other stakeholders 

58 
59 

See description of main activities and related costs in annex 6 
See annex 9 

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38 

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This option will involve some costs for associations and organisations that will be given the 
possibility to take legal action on behalf or in support of workers, as they will have to bear 
some costs related to the legal procedures (costs for filing a case before courts, costs of legal 
representation,  costs  linked  to  the  possible  needs  in  terms  of  human  resources  for  those 
organisations).  

On the other hand, this option will allow these organisations to have a more visible and active 
role in defending workers' interests and rights. 

6.5. 

Policy  option  5:  Directive  introducing  an  enhanced  protection  for  EU  migrant 
workers 

The provisions that would be adopted under this policy option, in addition to those foreseen 
under  option  4,  would  extend  the  scope  of  the  obligatory  measures  to  be  adapted  by  the 
Member states and would impose also some obligations on employers. 

Social impact  

Impact on legal certainty 

The information obligation and/or active measures to prevent nationality-based discrimination 
would  be  directly  applicable  in  the  workplace.  This  would  ensure  that  the  information  is 
easily  available  to  employed  migrant  workers.  Job-seekers  could  benefit  from  more 
transparent  recruitment  processes  if  companies  adopt  specific  criteria  and  guidelines.  The 
exact  impacts  will  depend  on  the  scope  of  the  national  obligations  transposing  the  EU 
directive as well on the pressure trade unions and public opinion exert on the companies to 
comply  with  them.  It  might  take  some  time  for  the  impact  of  these  provisions  to  become 
visible. 

Active  measures  could  provide,  for  instance,  that  enterprises  establish  a  list  of  criteria  that 
should be excluded when interviewing candidates for a post (such as requiring the candidate 
to be a native speaker, having the nationality of the host country or being already resident in 
that country). This would allow EU candidates to not be excluded from consideration because 
of discriminatory criteria.  

A legal obligation on employers to take active measures to prevent discrimination currently 
exists  in  two  Member  States60.  In  Sweden,  experts  consulted  expressed  the  view  that  such 
measures  are  important  and  effective:  if  a  company  is  found  to  not  comply  with  equal 
treatment  rules,  this  constitutes  bad  publicity  for  the  company  and  this  risk  motivates 
companies  to  work  actively  on  anti-discrimination  issues.  However,  the  impacts  are  very 
much linked to the specific Swedish context, where pressure from society regarding equality 
issues in general and the strong role of trade unions have enabled such active measures to be 
effective. This might not be the case in other countries. 

Sanctions and compensations to victims would also increase legal certainty, as a set of rights 
for workers and obligations for employers would be created. 

Impact on awareness of rights 

The information obligation and/or active measures to prevent nationality-based discrimination 
would  make  equal  treatment  of  EU  migrant  workers  a  part  of  companies'  human  resources 
policy, raise awareness of their rights among "national" workers and entrepreneurs and raise 
sensitivity  to  this  issue.  It  must  be  highlighted that non-discrimination is to a large extent a 
culture that needs to be encouraged.  

60 

Sweden and Slovenia 

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39 

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Impact on respect of individual rights/compliance with EU law 

Measures on prevention of discrimination are by nature  intended to  decrease  discriminatory 
practices.  The  possibility  to  impose  sanctions  may  act  as  a  deterrent  for  employers  to 
discriminate. It could be also expected that even when the discrimination has taken place and 
the  worker  decided  to  take  the  case  to  the  court,  the  employer  will  be  more  willing  to 
cooperate and resolve the case by mediation. The preventive effect of these measures should 
appear in the medium term. 
There  are  currently  23  Member  States61  that  impose  sanctions  and/or  compensations  for 
victims of discrimination, although they vary greatly  from  one  Member  State  to  another.  In 
France, experts consulted consider that these provisions have made people more aware of the 
possibilities  to  report  discrimination.  However,  research  in  France  indicates  that  the 
possibility of imposing sanctions/compensation has not been very often used in practice.  

Introducing  provisions  on  victimisation  would  reinforce  the  individual  situation  of  workers 
when claiming their rights. The employer will be prevented from retaliating against a worker 
lodging  a  claim  (dismissal,  etc.).  This  increased  protection  of  workers  could  reduce  the 
unwillingness to claim their rights in case of discrimination on the basis of nationality in the 
ten Member States where the provisions do not yet exist62.  

The  provisions  of  this  policy  option  would  help  reduce  discrimination  on  the  basis  of 
nationality by a combined approach of incentivising workers to use their rights (option 4) and 
introducing  the  prevention  of  discrimination  by  employers.  The  positive  social  impacts 
described  under  option  4  could  be  therefore  achieved,  probably  with  a  smaller  number  of 
court cases as employers would have stronger disincentives to discriminate. 

The  measures  foreseen  under  this  policy  option  are  theoretically  positive  and  convey  an 
important  message  to  society  to  fight  against  discrimination.  However,  it  has  not  been 
possible to show whether they have a significant effect on individuals. For instance, there is 
no  substantial  risk  attached  to  non-compliance  with  measures  to  prevent  discrimination  and 
therefore its effectiveness is doubtful. As regards victimisation, the individual will still need 
to prove that dismissal or any other negative treatment has been indeed the consequence of his 
introducing a claim. Regarding sanctions, they are not considered as a sufficient disincentive 
to  discriminate,  for  instance  if  the  chances  of  the  discrimination  being  challenged  and 
reported  are  low  or  if  the  employer  can  afford  paying  the  sanction.  On  the  other  hand, 
discriminatory  attitudes  may  be  concealed  behind  other  motives,  non-discriminatory,  and 
therefore no sanction would be imposed because no discriminatory treatment would appear.  

Fundamental rights 

By providing for specific obligations on  employers to ensure respect of EU  workers' rights, 
this option would have a positive impact on the freedom to choose an occupation and the right 
to engage in work (article 15), non-discrimination (article 21), fair and just conditions (article 
31) and freedom of movement (article 45). In so far as preventive measures may also involve 
information  activities,  it  would  have  a  positive  impact  on  the  workers'  right  to  information 
within the undertaking (article 27). 

Economic impact 

National authorities 

61 
62 

All except Denmark, Germany, Greece and Malta 
Czech Republic, Denmark, Greece, Hungary, Ireland, Luxembourg, Malta, Estonia, Romania, Slovakia 

EN 

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No  implementation  costs  for  national  authorities  have  been  identified  in  this  policy  option, 
further to the ones already described in policy option 4 and possibly training costs for judges 
in so far as new measures linked to judicial procedures would be introduced. If the measures 
considered under this policy option were to result in an increase of the number of court cases, 
they  could  have  some  impact  on  the  functioning  of  the  judicial  system.  However,  research 
conducted in the Member States where these elements are already in force has shown that this 
has not been the case. Given the uncertainties around the impacts on the juridical system they 
have not been assessed further.  

Enterprises 

This policy option consists in adopting active measures to prevent discrimination and would 
target all employers, i.e. businesses, public authorities, third sector organisations. This results 
in compliance costs for them. These costs would mainly consist of man-hour costs associated 
with the different active measures, as well as potential equipment and outsourcing costs, e.g. 
for training facilities and activities. 

It is difficult to provide exact estimates of such costs as they vary according to the actions that 
are taken by employers in order to comply with the obligations. Based on research carried out 
in Sweden, employers spent an average of € 88 per employee per year on complying with all 
active  measures-obligations  included  in  the  Discrimination  Act,  which  include  not  only 
ethnicity  but  also  other  grounds  of  discrimination  (sex,  religion).  With  regard  to  the 
provisions related to discrimination on the basis of ethnicity, the most costly activity is taking 
measures to  prevent  employees from being subjected to harassment or reprisals;  this cost is 
assessed at € 19 per employee per year. The cost s of compliance of other measures (such as: 
conducting  goal-oriented  work  to  actively  promote  equal  rights  and  opportunities; 
implementing  measures  to  ensure  that  working  conditions  are  suitable  for  all  employers; 
working to ensure that people have the opportunity to apply for vacant positions) amount to € 
15 per employee per year, on average63.  

It should be however stressed that there are some fixed costs linked to the obligations which 
will have to be covered by every employer irrespective of the number of employees. It implies 
that the burden put on SMEs would be relatively heavier. Even if they were to benefit from a 
regime with reduced obligations, the effort they will have to provide in terms of looking for 
expertise, time invested, etc. will be higher than for bigger companies that already have some 
kind of human resources policy. 

Implementation costs will also arise from the provisions of sanctions and/or compensations. 
The initiative would leave a margin of manoeuvre for Member States to set up the sanctions 
and the amount of compensation to be awarded to workers who have been discriminated on 
the  grounds  of  nationality.  The  specific  economic  and  financial  impacts  would  therefore 
depend on each Member State.  

France  was  used  as  a  case-study,  as  national  legislation  provides  for  sanctions  in  case  of 
discrimination on the grounds of nationality. It may be punished as a criminal offence with a 
fine of € 45,000 (e.g. refusal to hire a person, subj ecting an offer of employment to one of the 
grounds  covered  by  the  anti-discrimination  legislation).  According  to  the  national  labour 
code, when a court has decided in favour of an employee claiming discrimination and when 
the  employee  refuses  to  continue  his/her  contract  of  employment,  compensation  may  be 
allocated according to the following guidelines: not less than the salary of the past six months 
and  a  severance  pay  fixed  in  the  applicable  collective  agreement  or  employment  contract. 

63 

See examples of active measures taken by Swedish employers in annex 6 

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Furthermore,  the  French  Equal  opportunities  and  Anti-Discrimination  Commission  may 
intervene when  no  public action has been undertaken regarding the discriminating activities 
and can impose a transactional fine to the offender going from € 3,000 for an individual to € 
15,000 for a legal entity. 

7. 

COMPARISON OF OPTIONS 

The options have been compared with regard to their effectiveness in achieving the specific 
objectives  of  the  initiative,  their  efficiency  (cost-effectiveness),  coherence  with  the  general 
objectives of the EU and their impacts on stakeholders. Tables 1 and 2 give an overview of 
the comparison. 

Table 4: Evaluation criteria 

Option 1 

Option 2 

Option 3 

Option 4  

Option 5 

No action 

Guidance 

Recommendation

Directive 

Directive 

Effectiveness 

Efficiency 

Coherence 
with  general 
objectives 

0 

0 

0 

+ 

++ 

+++ 

+ 

+ 

+++ 

++ 

+++ 

+++ 

+++ 

- 

+/- 

+++very high; ++ high; + moderate; 0 neutral; - negative;  

Table 5: Benefits and costs for stakeholders 

Option 
1 

No 
action 

Option 2 

Option 3 

Option 4  

Option 5 

Guidance 

Recommendatio
n 

Directive 

Directive 

EU migrant 
workers 

No 
change 

Small and 
uncertain 
improvement 

Small and 
uncertain 
improvement  

Public 
authorities 

No 
change 

Potentially* 
medium size 
benefits 
through more 
clarity 

Potential benefits 
through more 
clarity and costs 
of actual 
implementation 

Medium 
size 
improveme
nt 

Benefits of 
increased 
clarity and 
certainty, 
costs of 
implementati
on and use of 
rights 

Potentially* 
big 
improveme
nt 

Benefits of 
clarity and 
certainty, 
costs of 
implementati
on and use of 
rights 

Enterprises 

/SMEs 

No 
change 

No 
significant 
impact 

Potentially minor 
impacts on costs 
and benefits for 

Contact 
point 
provides 

Contact 
point 
provides 

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enterprises 
(linked to 
employees 
actually using 
their rights) 

No 
change 

Potentially 
their role is 
strengthened 

Other 
stakeholders 
(trade 
unions, 
NGOs, etc.) 

Their role is 
strengthened, 
which provides 
them with the 
possibility to 
intervene - this 
will incur costs. 

support to 
enterprises, 
costs linked 
to 
employees 
actually 
using their 
rights 

Their role is 
strengthene
d, which 
provides 
them with 
the 
possibility 
to intervene 
- using this 
will incur 
costs. 

support to 
enterprises, 
costs of 
implementat
ion 
(relatively 
higher for 
SME), 
direct costs 
are higher 
than direct 
benefits. 

Their role is 
strengthene
d, which 
provides 
them with 
the 
possibility 
to intervene. 
Nevertheles
s this 
positive 
effect is 
likely to be 
smaller than 
in options 3 
& 4. Using 
this will 
incur costs. 

* potentially indicates that the effects are particularly uncertain 

7.1. 

Option 1: No further action at EU level 

Option  1  will  not  fulfil  all  the  operational  objectives  set  in  section  4.1.  While  awareness-
raising  can  be  maintained  or  even  increased  under  the  baseline,  protection  of  EU  migrant 
workers will not be strengthened and legal certainty will not be increased without additional 
action of the EU. The option is therefore not effective.  

Option  1  does  not  involve  additional  costs  but,  as  the  objectives  are  not  achieved,  it  is  not 
efficient  either.  This  option  does  not  appear  coherent  with  the  general  objectives  of 
contributing to a better functioning of the Single Market and a decrease in discrimination on 
the grounds of nationality. 

EU migrant workers will not have the certainty that in whichever Member State they work, a 
minimum level of support will be guaranteed in case of problems. Public authorities will not 
be obliged to make additional efforts to reduce discrimination based on nationality. They will 
also continue to face difficulties in applying EU law correctly. Enterprises which discriminate 
EU migrant workers, either intentionally or because of a lack of awareness, will not have any 

EN 

43 

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additional  incentive  to  put  an  end  to  discrimination.  Organisations  in  Member  States  where 
the law does not foresee their support to EU workers when they claim their rights will not be 
able to help the workers effectively.  

7.2. 

Option 2: Common guidance documents 

Option 2 will contribute to awareness-raising, as it will help increase the knowledge level of 
EU rules by national authorities. Option 2 could therefore fulfil the objectives of reducing the 
implementation  gap  and  reducing  discrimination  in  so  far  as  compliance  by  national 
authorities is concerned. However, guidance will not be binding and therefore the effects will 
depend  on  their  application  in  practice  and  on  the  degree  of  commitment  of  national 
authorities  to  ensure  such  application.  It  will  not  directly  lead  to  a  reduction  of  non-
compliance  cases  by  employers,  as  the  main  addressees  of  the  guidance  will  be  national 
authorities.  Their  effects  on  discrimination  by  employers  will  depend  on  the  dissemination 
given to the adopted guidance. 

The  option  is  moderately  efficient.  While  not  involving  any  direct  implementation  costs,  it 
contributes to a certain extent to achievement of the specific objectives. 

The  option  is  coherent  with  the  general  objectives  of  the  EU  of  contributing  to  a  better 
functioning  of  the  Single  Market  and  a  decrease  in  discrimination  on  the  grounds  of 
nationality. 

7.3. 

Option 3: Commission's recommendation to Member States 

If  the  recommendation  is  followed  by  the  Member  States  it  should  be  effective  in  raising 
awareness and enhancing support for the EU migrant workers. Its major flaw however, is its 
non-binding  nature  which  will  not  help  increase  legal  certainty.  Furthermore,  it  is  uncertain 
that Member  States will follow the recommendation,  especially  in light of the unfavourable 
trends described in the baseline scenario. As a result, this option may not fulfil the objectives 
of reducing discrimination and reducing the implementation gap in a satisfactory way. 

For  the  public  authorities  there  might  be  costs  linked  to  the  implementation  and  potentially 
increased numbers of court cases. Enterprises, most of all SMEs, will benefit from the advice 
offered by the supporting body. But the enterprises might also incur costs for the additional 
court  cases  generated  by  the  initiative  and  costs  for  upgrading  the  working  conditions  of 
workers previously discriminated. The other stakeholders’ benefit will be their increasing role 
and  visibility  and  the  effect  will  be  stronger  than  under  option  5  where  some  of  the 
obligations put on employers might reduce the need for assistance from the trade unions. The 
organisations will have to be prepared to cover the costs of assistance offered to EU migrant 
workers.  

The efficiency of this option will be lower than for option 4 as the costs would be the same (in 
case all Member States follow it) but the legal certainty would be lower. The fewer Member 
States  follow  the  recommendation  the  lower  the  implementation  costs  but  also  the 
effectiveness of the initiative. 

The  option  is  coherent  with  the  general  objectives  of  the  EU  of  contributing  to  a  better 
functioning  of  the  Single  Market  and  a  decrease  in  discrimination  on  the  grounds  of 
nationality. 

7.4. 

Option 4: Directive introducing support measures for EU migrant workers 

Option 4 will improve legal certainty, as it will allow for explicit protection and awareness on 
nationality-based discrimination as a separate ground.  

EN 

44 

   EN 

 
It will provide a significant contribution to raising awareness, as it will impose an obligation 
on  Member  States  to  disseminate  information  on  EU  free  movement  rights.  It  will 
furthermore allow for the identification of a specific body responsible for this task, therefore 
facilitating  access  to  information  for  all  relevant  stakeholders.  EU  migrant  workers  will  be 
facilitated  in  the  exercise  of  their  rights  and  receive  better  assistance  through  the 
establishment  of  a  specific  support  body,  the  provision  of  specific  defence  rights  and  the 
possibility for third parties to intervene on their behalf.  

Option 4 will therefore be able to fulfil the objectives of reducing discrimination and closing 
the gap between formal rights and their exercise in practice. It will also contribute to creating 
a favourable atmosphere for encouraging mobility, thus fulfilling the objectives of the Europe 
2020 strategy.  

Option  4  is  the  most  efficient  because  it  achieves  the  objectives  while  keeping  the  costs 
relatively  limited.  It  involves  costs  for  national  authorities  and  for  stakeholders.  Their 
magnitude will depend on the current situation in each Member State: they will be higher for 
Member States that do not have similar provisions in their national legislation64.  

The  directive  would  produce  the  same  benefits  and  costs  for  stakeholders  as  the 
recommendation (option 3), if followed by all the Member States, but without the incertitude 
linked  to  the  implementation  of  the  recommendation.  For  workers  the  benefits  will  be  even 
higher as only a legal instrument can guarantee that the same minimum level of support in all 
Member States.  

The  option  is  coherent  with  the  general  objectives  of  the  EU  of  contributing  to  a  better 
functioning  of  the  Single  Market  and  a  decrease  in  discrimination  on  the  grounds  of 
nationality. 

7.5. 

Option 5: Directive introducing an enhanced protection for EU workers 

Option 5 would have the same effects as option 4 as regards awareness and legal certainty. On 
the other hand, it would provide for an increased protection of EU migrant workers, as further 
measures  would  be  introduced  with  this  aim.  They  would  not  only  enjoy  the  possibility  of 
assistance and support when facing a problem, but they could expect less discrimination from 
the  outset  as  a  result  of  the  preventive  measures.  For  the  moment,  there  is  however  no 
evidence  of  the  effectiveness  of  these  additional  measures  in  the  Member  States  that  have 
introduced them.  

This  option  would  fulfil  the  two  specific  objectives  of  reducing  discrimination  and  gaps 
between rights and practice and could be potentially more effective than option 4.  

Any additional positive effects would be however reached at a relatively high cost. Imposing 
an  obligation  on  employers  to  take  active  measures  to  prevent  discrimination  may  be  well 
appropriate for companies that hire a significant number of EU workers, but disproportionate 
for those that do not. Prevention of discrimination within undertakings seems more fitted to 
fight against discrimination on other grounds (race, religion, sex), which can generally affect 
a larger number of workers. 

Contrary  to  the  other  options,  option  5  does  not  respect  the  Commission's  commitment  to 
reduce  administrative  burden  for  small  businesses,  therefore  cannot  be  considered  as  fully 
coherent  with  the  EU's  general  objectives.  Option  5  will  impose  administrative  burden  on 
enterprises, including SMEs, as there is no justification to exempt them from the obligations 

64 

See table in annex 5 

EN 

45 

   EN 

 
                                                 
imposed  by  this  policy  option:  discrimination  issues  may  concern  all  EU  workers  in  all 
enterprises and sectors of activity, independently of their size.  

The costs for public authorities could be slightly higher than in option 4 because they might 
have  to  organise  trainings  on  the  new  legal  provisions  and  also  devise  and  implement 
activities monitoring companies' compliance with the information obligations.  

For enterprises, the costs strongly outweigh the benefits. They would still be able to benefit 
from  the  advice  from  the  supporting  bodies  but  this  would  probably  only  allow  minor 
economies on the expenditure necessary to fulfil the information obligation.  

As mentioned under option 4, the role of other stakeholders would be less important with this 
preventive approach. 

7.6. 

The preferred option 

It stems from the analysis and impact assessment that the preferred option is a combination of 
options 2 and 4. They score slightly lower than option 5 on the effectiveness criterion but are 
the  most  efficient.  Together  they  provide  a  comprehensive  solution  for  all  the  problems 
identified,  without  involving  excessive  compliance  costs.  They  are  more  coherent  with  the 
general  objectives  than  option  5  which  puts  disproportionate  costs  on  companies  and 
especially on SMEs. They are also the options involving least uncertainty with regard to their 
effects. 

The  preferred  option  will  be  complemented  by  activities  of  the  Commission  such  as 
awareness-raising, adoption of interpretative documents and enforcement through monitoring 
and infringement procedures. 

8. 

MONITORING AND EVALUATION 

Monitoring 

Several indicators both quantitative (e.g. the number of complaints) and qualitative (e.g. the 
reports of the network of experts) will be used for monitoring purposes: 

– 

– 

– 

impact at EU level: number of complaints received by the Commission and number 
of infringement procedures initiated; 

activity  at  national  level:  activity  reports  by  the  supporting  bodies,  report  from  the 
network of expert on free movement of workers; 

degree  of  awareness  of  EU  workers  on  their  rights:  evolution  of  the  perception  of 
obstacles to free movement (Eurobarometers) 

The supporting bodies set up according to the initiative will also have a monitoring function 
and  will  be  able  to  provide  more  qualitative  data  on  discrimination  on  the  grounds  of 
nationality. The existing bodies in the field of anti-discrimination (race, religion, sex) already 
provide  this  kind  of  report,  therefore  including  nationality  in  the  monitoring  should  not 
involve major difficulties.  

Indicators  should  be  interpreted  with  caution.  For  instance,  the  incidence  and  extent  of 
discrimination  may  be  gauged  from  the  number  of  complaints  on  the  grounds  of 
discrimination  presented  to  national  courts.  But  this  figure  may  conceal  the  existence  of 
victims  who  do  not  make  complaints.  Inversely,  a  sharp  rise  in  the  number  of  complaints 
brought before the courts, specialised bodies or NGOs may simply indicate that action to raise 
awareness of the issues has been effective.  

EN 

46 

   EN 

 
Evaluation 

The  initiative  will  undergo  a  systematic  and  regular  evaluation  within  the  Advisory 
Committee on free movement of workers. 

Secondly, five years after the deadline for transposition, an evaluation will be carried out by 
the Commission with the assistance of external experts. 

The evaluation will: 

– 

– 

– 

– 

– 

– 

assess  awareness  among  citizens  and  relevant  stakeholders  about  the  existence  of 
supporting bodies, means of redress and possibility of organisations to intervene in 
their support; 

assess the activities developed by the supporting bodies; 

assess the role of the organisations; 

assess the characteristics of cases of nationality based discrimination most commonly 
dealt with; 

assess whether the initiative has led to positive change; 

identify the difficulties faced by supporting bodies and organisations.  

ANNEXES: 

Annex 1: Statistical data on intra-EU mobility 

Annex 2: EU provisions on free movement of workers 

Annex 3: Summary of case-law on free movement of workers 

Annex  4:  Examples  of  cases  of  problems  found  with  the  application  of  free  movement  of 
workers' rights 

Annex 5: Implementation of policy options – State of play 

Annex 6: Summary of case studies 

Annex 7: summary of responses to the public consultation among citizens 

Annex 8: summary of responses to the public consultation among organisations 

EN 

47 

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ANNEX 1 – STATISTICAL DATA ON INTRA-EU MOBILITY 

Table  1.1:  Number  of  working-age  (15-64)  citizens  residing  in  another  Member  State,  by 
country of origin and share in the origin country working-age population (in %), in 2010 

Total 

Since less than 7 years 

Nationality 

in 
thousand 

in thousand 

in % of origin country 
working-age pop. 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

ES 

FI 

FR 

EL 

HU 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

187 

154 

348 

33 

94 

505 

77 

35 

271 

86 

439 

334 

122 

253 

915 

166 

21 

78 

8 

318 

1182 

764 

1709 

78 

30 

136 

513 

44 

53 

187 

19 

45 

201 

27 

21 

68 

21 

179 

40 

70 

51 

154 

121 

11 

60 

: 

130 

782 

166 

994 

32 

: 

87 

172 

Source : Eurostat, EU-LFS, annual data  

0.8 

0.7 

3.7 

3.5 

0.6 

0.4 

0.8 

2.3 

0.2 

0.6 

0.4 

0.6 

1.0 

1.7 

0.4 

5.3 

3.3 

3.9 

: 

1.2 

2.9 

2.3 

6.6 

0.5 

: 

2.2 

0.4 

EN 

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Table 1.2: Share of those that envisage to work abroad in the future (and among them, share 
of those who would do it during the next year), 2009 (in % of population 15-64). 

Nationality 

Share of those envisaging to 
work abroad at some time in the 
future 

among those interested to move to 
work abroad, share of those who 
would do it in the next 12 months 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

ES 

FI 

FR 

EL 

HU 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

EU-27 

8 

18 

16 

10 

11 

11 

51 

38 

12 

35 

25 

8 

29 

22 

4 

35 

16 

36 

20 

22 

23 

21 

16 

37 

30 

23 

26 

17 

10 

7 

31 

2 

8 

8 

7 

21 

15 

6 

13 

7 

5 

15 

14 

28 

15 

38 

12 

8 

15 

16 

36 

11 

8 

11 

9 

12 

Source: 

Eurobarometer 

on 

geographical 

and 

labour 

mobility, 

2009

EN 

49 

   EN 

 
Table 1.3: Breakdown by citizenship of EU working-age (15-64) citizens in the EU Member 
States having the largest stock of EU citizens, 2010 (%)  

DE 

UK 

ES 

IT 

FR 

BE 

IE 

AT 

2
3  PL 

2
9  RO

4
4  RO

7
4  PT 

4
5 

2
5  PL 

3
5  DE

IT 

1
6 

1
4 

U
K 

1
1  PL 

9 

U
K 

1
0  FR 

2
1 

U
K 

2
5  PL 

IE 

1
3  DE  6  BG

1
0  BG 3 

IT 

9  NL

1
5  LT 

1
1  RO

4
1 

1
2 

1
2 

IT 

PL 

EL 

AT  8  LT  6 

IT 

8  DE 3  BE  7  ES 

7  LV  6  SK  7 

NL  6  PT  6  PT 

7  FR  2  DE 6  PL 

7  RO  4 

H
U 

6 

PT 

5  FR  5  DE 6 

U
K 

2  ES 

6  DE 5  SK  3 

IT 

5 

FR 

5 

IT 

5  FR  5  ES 

1  RO 5  RO 4  DE  3  CZ  3 

ES 

4 

R
O 

4  PL 

4 

H
U 

1  PL 

4  PT 

4  FR  3 

SI 

3 

U
K 

4  ES  3  NL 2  EL  1  NL 3 

U
K 

3  ES 

2  BG 2 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

RO  3  LV  3  BE  1  NL 1  BG 1  BG 2 

IT 

2 

U
K 

2 

Other 
EU 

14 

20 

4 

3 

3 

7 

7 

7 

Source : Eurostat, EU-LFS, annual data  

Note: the graph can be read as follows: Germany was the country having the largest number of working-age (non-national) 
EU  citizens  in  2010  (23%  are  Italian,  16%  Polish,  etc).  The  UK  was  the  country  having  the  second  largest  number  of 
working-age (non-national) EU citizen (29% are Polish, 14% Irish, etc).  

Table 1.4: Labour market status of working-age (15-64) EU citizens living in another Member 
State, in %, 2011, in EU-27 

Status 

Employed  Unemployed Inactive

Share (in 
%) 

67.9 

9.1 

23.0 

Source : Eurostat, EU-LFS, annual data  

EN 

50 

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Table  1.5:  Distribution  of  EU  migrant  workers  by  economic  sector  and  comparison  to  the 
average, in %, 2010, in EU-27 

Sectors (NACE rev.2) 

Manufacturing 

Construction 

Wholesale and retail trade; repair of motor vehicles and 
motorcycles 

Accommodation and food service activities 

Human health and social work activities 

Administrative and support service activities 

Activities of households as employers,… 

Education 

Transportation and storage 

Professional, scientific and technical activities 

Information and communication 

Other service activities 

Agriculture, forestry and fishing 

Financial and insurance activities 

Arts, entertainment and recreation 

Public administration and defence; compulsory social security 

Activities of extraterritorial organisations and bodies 

Real estate activities 

Water supply; sewerage, waste management,… 

Electricity, gas,… 

Mining and quarrying 

Source : Eurostat, EU-LFS, annual data 

EU 
migrant 
workers 

All 
citizenships

15.4 

12.3 

11.5 

10.8 

8.1 

6.0 

5.4 

4.8 

4.6 

4.6 

3.1 

2.5 

2.4 

2.2 

1.8 

1.8 

0.9 

0.8 

0.5 

0.3 

0.2 

15.8 

7.7 

14.1 

4.4 

10.3 

3.9 

1.2 

7.4 

5.1 

5.0 

2.9 

2.5 

5.2 

3.0 

1.6 

7.2 

0.1 

0.8 

0.7 

0.8 

0.4 

Note: 'All citizenships' refers to the sectoral distribution of all workers in the EU (nationals, 
other EU-nationals and non-EU nationals).  

EN 

51 

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Table  1.6:  Distribution  of  EU  migrant  workers  by  group  of  occupation  (ISCO)  and 
comparison to the average, in %, 2010, in EU-27 

Elementary occupations 

Craft and related trades workers 

Service workers and shop and market sales 
workers 

Professionals 

Technicians and associate professionals 

Plant and machine operators and assemblers 

Legislators senior officials and managers 

Clerks 

Skilled agricultural and fishery workers 

Source : Eurostat, EU-LFS, annual data 

EU migrant 
workers 

All 
citizenships 

19.9 

16.2 

15.1 

13.3 

11.0 

8.4 

8.1 

6.5 

1.5 

9.8 

13.0 

14.2 

14.7 

16.7 

8.1 

8.4 

10.7 

4.3 

Note:  'All  citizenships'  refers  to  the  occupational  distribution  of  all  workers  in  the  EU 
(nationals, other EU-nationals and non-EU nationals).  

EN 

52 

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ANNEX 2 - THE EU PROVISIONS ON FREE MOVEMENT OF WORKERS  

The current EU provisions on free movement of workers entail the right for EU citizens to be 
treated as national workers in respect to:  

Access to employment 

Includes: 

Exceptions 

Right  to  work  without  work 
permit  

No  quotas  or  percentages 
may be applied to recruitment 
of EU nationals 

Transitional  arrangements 
for  nationals 
from  new 
Member  States  (currently 
Bulgaria and Romania) 

assistance 
Same 
employment offices 

from 

Same  recruitment  procedures 
and criteria as nationals 

No  nationality  requirement 
for  access  to  jobs  may  be 
imposed 

Eligibility  for  employment 
subject 
may  not  be 
to 
registration 
conditions  of 
with  employment  offices  for 
people  who  do  not  reside  in 

Language  knowledge  (but 
only  a 
is 
reasonable  and  necessary 
for the job) 

level  which 

Access to posts in the public 
sector  (but  only  those  that 
involve  direct  to  indirect 
participation in the exercise 
of  powers  conferred  by 
public 
law  and  duties 
designed  to  safeguard  the 
general 
the 
State  or  of  other  public 
authorities)  

interests  of 

EN 

53 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
the  territory  of  the  Member 
State concerned 

employment, 

Access  to  financial  benefits 
intended  to  facilitate  access 
to 
the 
jobseeker  has  a  genuine  link 
with the labour market of the 
Member State concerned 

if 

Conditions of employment 

Including: 

Remuneration 

Promotion 

Other  conditions  of  work 
(e.g. holidays, work patterns) 

Dismissal 

Reinstatement 

Training 

Access 
advantages 

to  social  and 

tax 

Examples 

Beneficiaries:  EU  workers 
family 
and 
members 

dependent 

support, 

Income 
grants,  public 
fares reductions, etc 

study 
transport 

EN 

54 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Other issues 

Exceptions 

in 

part 

the 
Taking 
management 
bodies 
governed by public law and 
holding  an  office  governed 
by public law 

of 

Membership of trade unions 

Matters of housing 

Other issues 

Access to education 

Beneficiaries:  children  of 
EU workers 

to 

the 

Access 
general 
educational  system  under 
the 
same  conditions  as 
nationals 

Who can rely on EU rules on free movement of workers? 

can 

on  EU 
rely 
Who 
provisions  on  free  movement 
of workers? 

EU  migrant  workers:  citizens 
who  undertake  genuine  and 
in  another 
effective  work 
Member  State  under 
the 
direction  of  someone  else,  for 
which they are paid 

Includes:  part-time  workers, 
professional 
trainees, 
sportsmen 

Excludes  ancillary  and 
marginal activities 

Nationals  of  a  Member  State 

Example:  an  Italian  citizen 

Excludes  people  who 

EN 

55 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
left 

their 
have  never 
country of origin, e.g. an 
living 
Italian  national 
and  working 
in  Italy, 
who  has  never  exercised 
his 
free 
movement 

right 

to 

who  have  used  their  right  to 
work  or  to  study  in  another 
Member  state  and  come  back 
to their Member State of origin 

acquired  his/he 
who  has 
professional  qualifications  in 
Germany  and  comes  back  to 
Italy for work purposes 

A  Spanish  citizen  who  has 
worked  for  a  given  period  of 
time  in  Portugal  and  comes 
back to Spain to work 

– 

– 

– 

People  in  involuntary 
unemployment,  under 
certain conditions  

Workers  embarked  in 
vocational training 

Workers  who 

are 
unable to work due to 
illness or accident 

But  they  do  not  enjoy  the 
whole 
rights  as 
workers do 

range  of 

People  retaining  the  status  of 
worker in the Member State of 
employment 

Jobseekers 

Family 
irrespective 
nationality 

members, 
their 

of 

They  have  the  right  to  equal 
treatment  as  regards  social 
advantages  and  access  to 
education (children) 

EU law prohibits: 

– 

– 

Direct discriminations: those based on nationality 
Example:  when  nationals  from  other  Member  States  are  excluded  from  the 
possibility of applying to a given job 

Indirect  discriminations:  those  which  are  based  on  criteria  other  than  nationality 
but which lead to the same result. Even if they apply irrespective of nationality, they 
are liable to affect migrant workers more than national workers and risk placing the 
former at a disadvantage. 
Example: a residence condition imposed in order to have access to certain benefits. 
Although applied both to national and non national workers, it is likely to affect more 
non nationals. It will affect in particular cross-border workers who work in a given 
Member State but reside in a different one.  
Exceptions: if the criteria used are justified and are proportionate to the aim pursued 

EN 

56 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
– 

Obstacles:  those  measures  which  deter  or  preclude  citizens  from  leaving  their 
Member State in order to take up employment in a different Member State, even if 
they apply without regard to nationality. 
Example: transfer fees in sports 
Exceptions: when measures are justified by a legitimate objective, are appropriate to 
attain  that  objective  and  are  proportionate.  Example:  a  transfer  fee  that  intends  to 
cover the training invested by the club of origin in a player 

EN 

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ANNEX 3 – SUMMARY OF THE JURISPRUDENCE OF THE COURT OF JUSTICE AS REGARDS THE 

FREE MOVEMENT FOR WORKERS – CONCEPTS AND DEFINITIONS

Concept of worker 

65 

The term ‘worker’ in article 45 TFEU may not be interpreted differently according to the law 
of  each  Member  State,  but  has  a  Community  meaning.  That  concept  must  be  interpreted 
broadly (case 66/85, Lawrie-Blum). 

The  essential  feature  of  an  employment  relationship  is  that  for  a  certain  period  of  time  a 
person pursues an activity for and under the direction of another person in return for which he 
receives remuneration (case 66/85, Lawrie-Blum). 

Rules o free movement of workers cover only the pursuit of effective and genuine activities to 
the  exclusion  of  activities  on  such  a  small  scale  as  to  be  regarded  as  purely  marginal  and 
ancillary (case 53/81, Levin). 

Short  duration  of  employment,  limited  working  hours,  low  productivity  (C-344/87  Bettray), 
the fact that the salary the person concerned receives is lower than the minimum level set in 
the  host  Member  State  for  subsistence  (139/85  Kempf)  or  the  fact  that  he  receives 
remuneration  in  kind  (C-196/87  Steymann)  cannot  prevent  an  EU  citizen  from  being 
considered a worker. 

For example, part-time workers (C-53/81, Levin), trainees (C-27/91 Le Manoir), au-pairs (C-
294/06 Payir), on-call workers (C-357/89 Raulin) fall within the EU definition if their activity 
is effective and genuine. 

Workers of an international organization (389/87 and 390/87 Echternach e.a.), civil servants, 
(C-71/93 Van Poucke), public sector employees (152/73 Sotgiu) and professional and semi-
professional sportsmen (13/76 Donà v. Mantero, C-415/93 Bosman) are also covered by the 
definition of worker. 

Beneficiaries of free movement of workers rules 

The Court of Justice has confirmed that the rules on free movement apply to: 

- a person who works in one Member State and resides in another one (frontier workers, C-
57/96 Meints); 

-  a  person  who  works  in  his  or  her  country  of  origin  but  resides  in  another  one  (C-212/05 
Hartmann); 

-  an  EU  citizen  who  has  exercised  the  rights  of  free  movement  and  has  been  employed  in 
another  Member  State  and  then  returns  to  his/her  country  of  origin  (18/95  Terhoeve; C-
370/90 Singh); 

- an EU citizen who has exercised his right of free movement in order to acquire vocational or 
academic qualifications in another Member state (C-115/78 Knoors; 19/92 Kraus) 

65 

More detailed and comprehensive information about the case-law of the Court in this field can be found 
in the following documents: 
-  Communication  from  the  Commission  “Free  movement  of  workers  –achieving  the  full  benefits  and 
potential”, COM(2002) 694 final, of 11.12.2002 
- Communication form the Commission “reaffirming the free movement of workers: rights and major 
developments”, COM(2010)73 final, of 13.7.2010 
- Commission staff working document: Free movement of workers in the public sector, SEC(2010)1609 
final 

EN 

58 

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- EU citizens who carry out professional activities outside EU territory if the legal relationship 
is located within the territory of a Member State or retains a sufficiently closely link with that 
territory (C-214/94 Boukhalfa; C-9/88 Lopes da Veiga); 

- people retaining the status of worker; for instance, a person who after having engaged in an 
occupational  activity  in  the  host  Member  State,  undertakes  studies  in  that  Member  State 
leading  to  a  professional  qualification;  provided  there  is  a  link  between  the  previous 
occupational activity and the studies in question (C-357/89 Raulin; C-39/86 Lair) . 

Equal treatment 

– 

Jobseekers:  access  to  benefits  of  a  financial  nature  intended  to  facilitate  access  to 
employment  on  the  labour  market  of  the  host  Member  State,  provided  there  is  a 
genuine link between the jobseeker and the employment market in question (C-22/08 
Vatsouras) 

– 

Access to employment - exception: language requirements 

A certain level of language knowledge may be required for access to a post, but the 
level required must be  reasonable and  necessary for the  job  in question and  cannot 
constitute  grounds  fro  excluding  workers  from  other  Member  States  (C-379/87 
Groener). 

Employers  cannot  require  only  a  specific  qualification  or  certificate  obtained 
exclusively  in  the  host  Member  State  as  proof  of  language  knowledge  (C-281/98 
Angonese) 

– 

Access to employment – exception: nationality condition for posts in the public 
sector 

Article  45(4)  TFEU  makes  an  exception  to  the  general  right  of  free  movement  of 
workers as regards access to the public sector, which can be reserved to the nationals 
of the host Member State. However, this exception covers posts which involve direct 
or indirect participation on the exercise of powers conferred by public law and duties 
designed to safeguard the general interests of the State or of other public authorities 
(149/79, Commission v. Belgium).  

Criteria  must  be  assessed  on  a  case-by-case  basis  with  regard  to  the  nature  of  the 
tasks and responsibilities involved (152/73 Sotgiu). 

Examples:  jobs  such  as  postal  or  railway  workers,  plumbers,  gardeners  or 
electricians, teachers, nurses and civil researchers are not covered by this exception 
and therefore may not be reserved for nationals of the host Member State. 

Once  a  public-sector  post  is  open  to  EU  citizens,  equal  treatment  as  regards  other 
aspects  of  recruitment  must  be  guaranteed,  for  instance,  previous  professional 
experience acquired in the public sector of another Member State must be taken into 
account in the same ways as professional experience acquired within the system of 
the host Member State (C-419/92 Scholz). 

– 

Access to employment in the private sector  

The exception of article 45(4) TFEU cannot be applied to private sector posts (case 
C-283/99 Commission v Italy).  

However,  for  private  sector  posts  to  which  the  State  assigns  public  authority 
functions,  posts  may  be  reserved  to  nationals  only  if  the  rights  under  powers 

EN 

59 

   EN 

 
conferred by public law are actually exercised on a regular basis and do not represent 
a very minor part of their activities (e.g. case-law on the nationality condition applied 
to captains and chief mates on board vessels flying the Member State’s flag C-405/01 
Colegio de Oficiales de la Marina Mercante Española and C-47/02 Anker). 

– 

Sport 

The  principle  of  equal  treatment  applies  to  clauses  contained  in  the  regulations  of 
sporting  associations  which  limit  the  number  of  EU  players  that  can  be  fielded  in 
official matches; The fact that those clauses do not concern the employment of those 
players,  on  which  there  is  no  restriction,  is  irrelevant;  In  so  far  as  participation  in 
such matches is the essential purpose of a professional player’s activity, a rule which 
restricts such participation also restricts the chances of the player of being employed 
(C-415/93 Bosman). 

– 

Working conditions 

Professional  experience  may  play  a  role  when  determining  working  conditions 
(grade, salary) in the public sector of the host Member state. In that case, periods of 
comparable employment of the EU migrant worker in other Member states must be 
taken into account in the same way (152/73 Sotgiu; C-15/96 Schöning). 

– 

Social advantages 

Social  advantages  are  all  advantages,  whether  or  not  linked  to  a  contract  of 
employment, that are generally granted to national workers primarily because of their 
objective  status  as  workers  or  by  virtue  of  the  mere  fact  of  their  residence  on  the 
national territory, and the extension of which to workers who are nationals of other 
Member  states  seems  likely  to  facilitate  their  mobility  within  the  EU  (C-85/96 
Martinez Sala). 

The  concept  of  social  advantages  covers  financial  benefits  (e.g.  minimum 
subsistence  payments  (249/83  Hoeckx),  child-raising  allowances  (C-111/91 
Commission v. Luxembourg), fare reductions in public transport (C-32/75 Cristini), 
study  grants  (39/86  Lair),  funeral  payments  (C-237/94  O’Flynn)  and  non-financial 
benefits  (e.g.  the  right  to  require  that  legal  poroceedings  take  place  in  a  specific 
language  (C-137/84  Mutsch);  the  possibility  for  a  migrant  worker  to  obtain 
permission for his unmarried partner to reside with him C-59/85 Reed). 

Frontier  workers  are  entitled  to  social  advantages  in  the  Member  State  of 
employment (C-57/96 Meints). 

Dependent  family  members  of  EU  migrant  workers  have,  irrespective  of  their 
nationality,  the  right  to  access  to  social  advantages  (261/83  Castelli,  C-337/97 
Meeusen). 

Indirect discriminations 

EU rules on free movement of workers prohibit not only overt discriminations by reason of 
nationality  but  also  all  covert  forms  of  discrimination  which,  by  the  application  of  other 
distinguishing criteria, lead in fact to the same result (C-419/92 Scholz).  

Conditions imposed by national law must be regarded as indirectly discriminatory if they are 
intrinsically  liable  to  affect  migrant  workers  more  than  national  workers  and  if  there  is  a 
consequent risk that they will place the former at a disadvantage (case C-237/94 O’Flynn).  

EN 

60 

   EN 

 
Examples  of  indirect  discriminations  are:  residence  conditions  (C-111/91  Commission  v. 
Luxembourg;  C-57/96  Meints),  refusal  to  take  into  consideration  periods  of  employment  in 
the public service of other Member States (C-419/92 Scholz). 

Indirect discriminations may be accepted if justified by objective considerations independent 
of the nationality of the workers concerned and if they are proportionate to the legitimate aim 
pursued. 

Obstacles to free movement 

Nationals of Member States have the right to leave their country of origin to enter the territory 
of  another  Member  State  and  reside  there  in  order  to  pursue  an  economic  activity  there. 
Provision which preclude or deter a national of a Member State from leaving his country of 
origin  in  order  to  exercise  his  right  to  freedom  of  movement  constitute  an  obstacle  to  that 
freedom even if they apply without regard to the nationality of the workers concerned.  

Obstacles can be accepted if they pursue a legitimate aim compatible with the Treaty and are 
justified  by  pressing  reasons  of  public  interest.  In  addition,  the  rules  concerned  must  be 
suitable  to  attain  that  aim  and  not  go  beyond  what  is  necessary  for  that  purpose  (C-415/93 
Bosman).  

EN 

61 

   EN 

 
ANNEX  4  -  EXAMPLES  OF  CASES  OF  PROBLEMS  WITH  THE  APPLICATION  OF  EU  RULES  ON 

FREE MOVEMENT OF WORKERS 

Austria 

Belgium 

Bulgaria 

Czech Republic 

Cyprus 

Denmark 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

Access to student grants to study abroad is subject to a condition 

of prior residence of 5 years in Austria 

A Hungarian football referee was denied access to employment 

on the grounds that he did not reside in the country 

Linguistic knowledge in order to work in the local public sector 
can  be  proved  only  through  a  specific  certificate  delivered  in 
Belgium, to the exclusion of other means of proof 

A  private  company  rejected  the  application  made  by  an  EU 
citizen for a job as sales assistant on the basis that he was not 
British or speak English with a British accent  

All  posts  in  the  Ministry  of  the  Interior  are  reserved  for 
Bulgarian citizens, and it might be questionable whether all the 
positions fall within the exception of article 45(4) TFEU 

There are minimum quotas for Bulgarian seafarers 

Public service posts are still governed by old rules, which limit 

the hiring of EU workers 

One 

in  six  published 

job  advertisements  contained  non 
proportionate  requirements  to  master  the  Czech  language  in  a 
way  that  went  beyond  the  requirements  for  the  job,  according 
to the Ombudsman 

There  have  been  complaints  about  the  level  of  linguistic 
knowledge  required  for  nursing  professions  and  building 
contractors. 

There have been also complaints about treatment reserved to EU 
trainees in the hotel and tourism sectors, as they seem not to be 
considered as workers 

In the public sector, seniority is calculated from the date of first 
the  purpose  of 
the  Danish  system  for 

in 

employment 
calculating certain benefits 

Access to study grants to study abroad is subject to a condition 
of having lived or worked in Denmark for at least two years out 
of the past 10 

Estonia 

– 

Residence requirements for access to study loans 

EN 

62 

   EN 

 
Finland 

France 

Germany 

Greece 

Hungary 

Ireland 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

A  British  national  complained  that  he  was  unable  to  get  her 
fixed-term  contract  converted  into  open-ended  one  (according 
to  Finnish  law)  because  she  was  unable  to  speak  Finnish; 
however,  this  did  not  stop  her  employer  from  renewing  her 
contract 

A  person  working  in  the  French  national  railway  company  had 
problems in getting his previous professional experience gained 
in  the  Belgian  railway  company  taken  into  account  for  the 
calculation of seniority 

Some  local  authorities  still  required  Polish  workers  to  obtain  a 
transitional 

the  expiration  of 

the 

work  permit  after 
arrangements 

A Bulgarian student was denied access to a job as night guard in 
a public hospital on grounds that a German national could work 
in that position 

German  employment  services  were  reported  to  deny  assistance 
to  a  Lithuanian  citizen  because  they  would  not  grant  him  a 
work permit in any case 

In order to prove that a candidate to a post  in the public sector 
possesses  the  necessary  language  skills  it  is  often  required  to 
produce  proof  from  a  Greek  secondary  school  or  a  Greek 
language centre; other means of proof are not accepted 

Post-graduate diplomas obtained in other Member States are not 
taken into consideration when working in Greece (for example, 
for  promotion  purposes),  while  similar  diplomas  obtained  in 
Greece are taken into account 

A  private  company  refused  to  hire  non-nationals  and  the  case 

was brought before the Ombudsman 

An  announcement  (2010-2014)  for  the  submission  of  an 
application  to  the  Office  for  Employment  and  Social  affairs 
required  the  candidate  to  be  Hungarian,  while  there  were 
doubts  hat  the  job  n  question  would  be  covered  by  the 
exception of article 45(4) TFEU 

Irish employers often request a residence card or registration as a 

condition for employment 

Citizens  have  reported  that  it  is  admitted  public  policy  of  the 
the 

to  give  preference 

to 

local  employment  services 
employment of Irish nationals 

EN 

63 

   EN 

 
 
 
Italy 

Latvia 

Lithuania 

Luxembourg 

Malta 

Netherlands 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

A  Romanian  citizen  reported  that  his  professional  experience 
gained  in  Romania  as  a  teacher  was  not  taken  into  account 
when  applying  for  inclusion  in  the  reserve  lists  as  teachers  in 
Italy.  The  same  problem  was  faced by an Italian paediatrician 
who had been working for a number of years in Belgium 

Professional qualifications as teachers obtained in other Member 
States  are  awarded  less  points  that  comparable  qualifications 
obtained  in  Italy  for  the  purpose  of  inclusion  on  the  reserve 
lists as teachers 

Legislation  restricts  the  means  by  which  it  is  possible  to  prove 

sufficient knowledge of Latvian to specific diplomas 

Previous professional experience is important with regard to the 
remuneration.  However,  only  professional 

amount  of 
experience in Latvian public institutions is taken into account 

Social  scholarships  are  limited  to  people  with  permanent 

residence in Lithuania 

Some  educational  establishments 

require  previous  work 
experience in the institution in order to accept applications for 
certain  research  or  lecturing  posts,  without  accepting  similar 
experience gained abroad 

Requirement of proficiency in the three languages of the country 

is often required in order to work in the public sector 

Access  to  study  grants  is  subject  to  a  condition  of  residence  in 

Luxembourg 

Professional  experience acquired in other Member States is not 
taken  into  account  when  determining  working  conditions  for 
teachers 

Access  to  student  grants  is  subject  to  a  condition  of  prior 

residence of 5 years 

Access to student grants to study abroad is subject to a condition 

of prior-residence of at least three out of six years 

The  Equal  Treatment  commission  published  a  decision  on 
discrimination between EU citizens and own nationals in a case 
where  Polish  seasonal  workers,  doing  the  same  job  as  their 
Dutch colleagues, received a lower salary 

EN 

64 

   EN 

 
 
 
Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

United Kingdom 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

Access to some social advantages and study grants is subject to 

residence criteria 

Nationality condition is still required for access to different posts 
in the public sector (doubts that they are covered by the case-
law of the Court of Justice) 

Public  sector  posts  other  than  in  the  health  service  are  often 

advertised as only being available to Portuguese citizens 

Some local authorities have applied old legislation only allowing 
Portuguese  citizens  to  apply  to  be  placed  on  the  housing 
register 

Civil service seems to be reserved to Romanian citizens 

Some  social  assistance  benefits  are  only  awarded  to  those  who 

hold permanent residence in Slovakia 

Labour  relationships  of  foreign  seafarers, 

including  EU 
nationals,  are  governed  by  conditions  of  their  labour  contract 
and not by the labour code (which applies to nationals) 

Access to some study grants is reserved to Slovenian citizens 

Recruitment  procedures  in  the  public  sector  often  privilege 
candidates  with  experience  in  the  national/regional  public 
sector 

Some job advertisements as English teachers require candidates 

to be English native speakers 

Some  citizens  have  complained  that  it  is  requested  to  speak 

Swedish in order to be included on job-seekers listings 

Quotas  on  the  basis  of  nationality  are  applied  by  some  private 

companies 

A German national fully qualified to work as a teacher and with 
professional  experience  gained  in  Germany  was  told  that  he 
should have proven experience of teaching in the UK in order 
to work there 

– 

Advertisements for private fellowships (research or training) are 

limited to UK, Irish and other Commonwealth citizens 

ANNEX 5 - SUMMARY OF CASE STUDIES 

Supporting bodies – case studies : Ireland  

EN 

65 

   EN 

 
 
 
The Equality Authority was set up in 1999 as an independent authority. Among its functions, 
it has to provide information to the public on the equality legislation. Actions carried out in 
this regard include: 

– 

– 

– 

– 

– 

Producing  booklets  with  information  on  the  relevant  pieces  of  legislation.  The 
booklets  can  be  ordered  in  hard  copy  or  downloaded  through  the  Equality 
Authority’s website, and are available in 14 different languages. 

Responding to queries from the general public through an information centre 

Providing  briefings  to  employers,  service  providers  and  trade  unions  on  case-law 
under equality legislation and on good practices. 

Conducting research and publishing casework reviews to communicate learning from 
the casework 

Contributing  to  raising  public  awareness  on  equality  issues  through  promotional 
activities (stands, etc). 

The  Equality  Authority  performs  its  functions  in  conjunction  with  different  stakeholders, 
including employers and trade unions. 

The  booklets  summarise  the  equality  rights  outlined  by  the  relevant  legislation.  The 
assumption  was  that  EU  citizens  would  be  better  able  to  exercise  their  rights  if  they  were 
familiar with the content of those rights. All relevant stakeholders highlighted that access to 
information is one of the fundamental challenges for migrant workers. Thus, if the Equality 
Authority  contributed  to  raising  awareness  of  rights  among  migrant  workers  through  its 
information  activities,  there  were  strong  reasons  to  believe  this  would  lead  to  improved 
conditions for this group. 

Aspects of employment covered by the booklets and relevant to possible discrimination on the 
grounds of nationality include: equal pay, access to employment, vocational training and work 
experience,  terms  and  conditions  of  employment,  promotion  or  re-grading,  classification  of 
posts, dismissal and collective agreements. 

Impacts on workers 

A quantitative indication of the impact on EU workers can be found in the Quarterly National 
Household  Survey  produced  by  the  Irish  Statistics  Office.  In  a  June  2011  publication,  the 
2004  survey  was  compared  to  the  2010  survey.  In  2004,  13%  of  non-Irish  respondents 
reported that they had experienced work-related discrimination, either in “looking for work” 
or “in the workplace” in the previous two years. In 2010, the number had dropped to 12%. As 
regards awareness of rights, between 2004 and 2010 the percentage of non-Irish nationals that 
reported they had no understanding of their rights dropped from 38% to 27%. 

It  is  not  possible  to  link  these  positive  developments  directly  to  the  work  of  the  Equality 
authority. All interviewees however indicated that the work of the Equality authority was an 
important  contribution.  Indications  of  the  Equality  Authority’s  impact  are  summarised  as 
follows: 

– 

– 

The  Equality  authority’s  booklets  were  used  extensively  by  other  organisations  in 
their  information  work.  The  booklets  were  also  distributed  to  libraries  by  the  Irish 
Congress of Trade Unions (ICTU). 

The booklets were extensively downloaded from the Equality authority’s homepage. 
It was projected that the information booklet would be downloaded 15.620 times in 
2010. 

EN 

66 

   EN 

 
– 

During  2010,  the  Equality  Authority  dealt  with  8.345  enquiries  from  the  public  on 
the  legislation  under  its  remits.  Out  of  these,  4.905  were  related  to  equality 
legislation, including employment. 

Impacts on employers and SMEs 

One  of  the  positive  outcomes  of  the  activities  of  the  Equality  Authority  is  the  fact  that  it 
works  closely  with  the  Irish  Business  and  Employers  Confederation  (IBEC)  and  conducts 
research  used  to  inform  employers  on  the  benefits  of  the  equality  policies.  Furthermore, 
through its Equality Mainstreaming Unit (EMU), the equality Authority operated a supporting 
scheme for SMEs that enabled them to develop equality policies and to establish an equality 
infrastructure.  In  2010,  the  EMU  also  prepared  a  report  on  examples  of  good  practice  from 
SMEs. 

Impacts on national authorities 

The Equality Authority conducted research on equality issues, and as such was a contributor 
to policy development at the national level. 

Impacts on other stakeholders 

The Equality Authority worked closely with other stakeholders. Both IBEC and ICTU drew 
on research and information pieces made by the Authority, and the authority funded activities 
conducted by these and other organisations 

Costs 

The resulting administrative costs consisted of the one-off costs for setting up an information 
infrastructure (website, public information centre/phone hotline) and recurring/ongoing costs 
for  information  activities.  The  one-off  costs,  however,  could  also  be  regarded  as 
implementation  costs  related  to  the  establishment  of  the  infrastructure  at  the  Equality 
Authority, if not already in place.  

The  Irish  Equality  Authority  carries  out  five  different  activities.  The  resulting  recurring 
administrative costs consist of man-hour, equipment, outsourcing and other costs, as seen in 
the table below:  

Activities 

Administrative cost elements 

(1) 

(2) 

Creating 

and 
providing  booklets 
with  information  on 
the  relevant  pieces 
of legislation 

Responding to queries 
the  general 
through 
a 
information 

from 
public 
public 
centre 

(3) 

Briefings 

employers, 

to 
service 

– 

– 

– 

– 

– 

Outsourcing costs (external service provider) for re-
designing, updating and re-publishing the booklet 
due to changes in the legislation 

Outsourcing costs for translating the booklet into 14 

languages 

Man-hour  costs  of  the  staff  for  getting  trained, 
providing 
information  by  phone,  eventually 
processing a query into a potential case, following 
sending  written 
calls  by 
up  on  phone 
information/material, and documenting the calls; 

Equipment/supplies costs for phone bills  

Man-hour 

the 
for 
trainings/presentations  logistically  and  content-

preparing 

costs 

EN 

67 

   EN 

 
providers,  and  trade 
unions 
– 
presentations 
and 
trainings 

(4) 

(5) 

Conducting 

and 
casework 

research 
publishing 

Promotional  activities 
information 

– 
stands, events 

(6) 

Providing information 
through the website 

wise,  and  conducting  the  trainings/holding  the 
presentations 

Other  costs:  man-hour  costs  for  travelling  and 

travel costs 

Man-hour costs  

Equipment/supplies  or  outsourcing  costs  for  the 

publications 

Man-hour  costs 

for 

the  staff  attending 

the 

information stands/events 

Equipment/supplies  costs  for  the  booth  (technical 

equipment etc.) 

Man-hour costs of the staff uploading publications, 

press releases etc. 

Equipment/supplies costs: basic maintenance of the 
website and additional security costs (for upgrades 
etc.) 

Outsourcing costs: external IT support 

– 

– 

– 

– 

– 

– 

– 

– 

It  must  be  noted  that  the  information  activities  of  the  Equality  Authority  are  not  limited  to 
information  regarding  discrimination  of  EU  migrant  workers  on  the  grounds  of  nationality. 
Rather,  the  authority  disseminates  information  on  equality  legislation  in  general.  It  was  not 
possible to single out the costs directly and only related to the rights of EU migrant workers.  

This has to be kept in mind when looking at the figures provided in the table on the following 
page.  In  total,  the  Equality  Authorities’  recurring  administrative  costs  associated  with  the 
functions of providing information on equality in general – and not only about rights of EU 
migrant workers and their families – amounted to around EUR 340,000 in 2010.  

EN 

68 

   EN 

 
 
Measures

Activities

Description 
employees

Employee 
type

Hourly 
wage 
(in euro)

Time 
spent per 
activity 
(in hours)

Internal 
costs
(in euro)

Frequency

Total 
internal 
costs
(in euro)

Material/ 
equipment 
costs 
(in euro)

Consul-
tancy 
costs 
(in euro)

Other 
costs 
(in euro)

Total AC 
(in euro)

Comments

1. Website

a) Setting up the website

b) Maintaining/updating the 
website

C lerical standard 
officer

4: C lerks

23

16

368

per week 52

19.136

11.000

30.136

2. Phone hotline

a) Setting up the hotline

b) Providing hotline services

Regular training of staff 
providing hotline services

4 clerical standard 
officers

4: C lerks

23

1 executive officer 3: Technicians 31

1 higher executive 
officer

2: 
Professionals

3,5 clerical 
standard officers

4: C lerks

40

23

64

16

16

1.472

496

640

once a 
year

once a 
year

once a 
year

1

1

1

1.472

496

640

328,3

7.551

per month 12

90.611

4.000

1 executive officer 3: Technicians 31

93,8

2.908

per month 12

34.894

1 higher executive 
officer

2: 
Professionals

40

93,8

3.752

per month 12

45.024

Advising/providing 
information, follow-up on 
phone calls/sending 
information/material, 
documenting calls by filling a 
form

1.472

213.856

496

640

94.611

34.894

45.024

30.136

C annot be quantified as the website 
was set-up 12 years ago.

The material costs consist of the 
basic maintanance costs and the 
additional security costs (for 
upgrading etc.). The IT-support 
costs (external costs) could not be 
quantified.
C annot be quantified as the phone 
system already existed.

3. Promotional 
activities

a) Trainings/presentations to 
service providers, employers, 
trade unions, etc.

Head of 
C ommunications 
or Principal Officer

1: Managers

51

b) Information events/stands

1 clerical officer

4: C lerks

23

1 executive officer 3: Technicians 31

16

12

12

816

276

372

number 
per year

per 
occurence

per 
occurence

30

24.480

12.240

36.720

Other costs are travel costs.

11

3.036

9.075

12.111

16.203

Material costs are the costs for the 
booth.

11

4.092

4.092

c) Advertisement

Updating, redesigning and re-
publishing a booklet due to 
changes in the legislation

Public awareness campaign 
for the updated 
publication/booklet

50.000

50.000

Spent in 2010

80.000

30.000

30.000

Spent in 2010

340.195

EN 

69 

EN 

 
  
 
Prevention of discrimination –case study Sweden 

The Swedish legislation (Discrimination Act) presents a list of so-called “active measures” 
which  employers  and  employees  are  to  cooperate  on  to  bring  about  equal  rights  and 
opportunities  in  the  working  life  to  combat  discrimination.  The  act  encourages  the  two 
parties to work together, but the obligation lies solely on the employer to:  

(a) 

(b) 

(c) 

(d) 

conduct  goal-oriented  work  to  actively  promote  equal  rights  and  opportunities  in 
working life regardless of sex, ethnicity, religion or other belief; 

implement  such measures as can be required in view of their resources  and other 
circumstances to ensure that the working conditions are suitable for all employees 
regardless of sex, ethnicity, religion or other belief;  

take measures to prevent and hinder any employee being subjected to harassment 
or  reprisals  associated  with  sex,  ethnicity,  religion  or  other  belief  or  to  sexual 
harassment;  

work  to  ensure  that  people  have  the  opportunity  to  apply  for  vacant  positions 
regardless of sex, ethnicity, religion or other belief. 

Some  examples  of  concrete  active  measures  adopted  by  Swedish  employers  are  listed 
below: 

Measures 
Yearly equality plan66 

Yearly  survey  among 
employees  on  the level 
of 
and 
equality 
discrimination issues 

Guidelines 

Activities 

– 

– 

– 

– 

– 

– 

Discussion  of 

issues  and 
(general)  equality 
objectives  on  a  monthly  basis  in  the  group  of 
managers  or  with  the  employees  in  monthly  team 
meetings  

Yearly  general  meeting  of  all  managers  and 
employees  to  discuss  the  achievement  of  the 
objectives of the equality plan 

Preparing the questionnaire and handouts, launching 
the  survey  –  sending  out  the  questionnaires, 
receiving  and  analysing  the  filled  questionnaires, 
summarising 
in  a  report  -  HR 
department; 

the  results 

Presentation  and  discussion  of  results  –  managers 

and employees 

Developing  guidelines  (HR  department,  working 

group) 

Publishing guidelines on the website 

Criteria  list  to  be  used  – 

Developing  a  criteria  list  which  helps  focusing  on 

66 

The general aim of the equality plans is equal treatment of men and women; however, they are often 
affirming equal treatment of employees regardless of matters such as gender, religion, sexuality and 
ethnicity. The nature and content of equality plans vary according to how developed they are. Some 
plans  are  pure  equality  statements  not  linked  to  any  specific  actions.  Other,  more  developed  plans 
might  include  special  actions  targeted  at  defined  areas  or  limited  groups  of  employees.  Plans 
embedded  in  an  employer's  general  human  resources/personnel  policy  are  likely  to  be  even  more 
developed. In such cases, the equality plans concerned are applied to all employees and all sections of 
the organisations concerned. Businesses with less than 10 employees (micros) are excluded from the 
obligation to set up an equality plan; see http://www.eurofound.europa.eu/eiro/2004/02/study/tn0402101s.htm 

EN 

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in 
recruiting/application 
procedures 

of 
job 
Publication 
English 
in 
offers 
(besides 
the  national 
language) 

Educational 
activities/trainings  on 
equality matters 

Language  courses  for 
foreign employees 

the  abilities  of  the  applicant  rather  than  his/her 
nationality, skin colour etc. by HR department 

– 

Translation of job offers 

– 

– 

– 

– 

– 

General 

trainings  or 

specific 
discrimination  issues  determined  on  the  basis  of 
the outcome of the yearly survey 

trainings  on 

Targeted at managers and/or employees 

Organised by the HR department 

Prepared and provided by external trainers 

Provided by external trainer 

(targeted  at  all  foreign  employees,  not  only  to  EU  migrant 
workers) 

A  study  on  the  effects  and  costs  of  provisions  concerning  active  measures  in  Sweden’s 
Discrimination Act carried out by the Swedish Agency for Public Management on behalf of 
the Government body Statskontoret67, came to the conclusion that it is difficult to provide 
exact  estimates  of  the  compliance  costs  associated  with  the  ‘active  measures’.  The  study 
included a questionnaire survey of 220 employers68 and 17 education and training providers. 
The study found that Swedish employers on average spent around 800 SEK (~ EUR 88) per 
employee  per  year  on  complying  with  all  active  measures-obligations  included  in  the 
Discrimination  Act.  The  largest  sums  go  towards  work  on  gender-related  issues.  Of  the 
provisions  related  to  discrimination  on  the  basis  of  ethnicity  (including  nationality),  the 
most  costly  is  section  6  of  chapter  3:  taking  measures  to  prevent  harassment  or  reprisals, 
which is assessed at 170 SEK (~ EUR 19) per employee per year. Taking aside the measures 
related  to  section  8  (education  and  training  on  gender  equality),  section  6  (preventing 
harassment),  section  1  (cooperation  between  employees  and  employers)  and  section  5 
(combining  work  life  and  parenthood),  the  costs  of  compliance  with  all  the  remaining 
obligations (including, among others, sections 3, 4 and 7 which relate to ethnicity) amount 
to only 130 SEK (~ EUR 15) per employee per year, on average. 

As the Active Measures related to ethnicity are less specific than the obligations related to 
gender issues, they provide more flexibility for employers to choose different measures in 
their  work  to  prevent  discrimination,  and  compliance  costs  are  similarly  bound  to  be 
varying.  This  also  means  that  smaller  companies,  on  which  compliance  costs  would 
normally  way  more  heavily,  are  freer  to  adjust  their  efforts  according  to  means  and 

67 

68 

Statskontoret:  ”Aktiva  åtgärder  mot  diskriminering  –  effekter  och  kostnader”;  2011:4. 
http://www.statskontoret.se/upload/Publikationer/2011/201104.pdf 
The  employers  were  selected  from  a  list  of  569  employers  provided  by  the  Equality  Ombudsman 
comprising the companies which had taken part in the so called „Miljongranskning“ – a supervision 
exercise  carried  out  by  the  Ombudsman  a  few  years  earlier.  The  study  report  does  not  provide 
information on the size of the surveyed companies or cost estimations divided by different sizes of 
companies. 

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resources. Equally, the compliance costs would depend on the scope of the measures taken 
by each employer, i.e. the scope of yearly equality plan.  

Sanctions and compensation – case study France 
The case-study is based on the French case, where the existing discrimination legislation69 
was in principle considered to cover everyone, and the principle of equality applied to non-
nationals "unless the legislator could justify a difference in treatment based on conditions of 
public interest".70 More concretely, discrimination on the grounds of nationality is forbidden 
in the French Labour Code and Penal Code. According to the Penal Code, "discrimination 
comprises  any  distinction  applied  between  natural  persons  by  reason  of  their  origin  […] 
their  membership  or  non-membership,  true  or  supposed,  of  a  given  ethnic  group,  nation, 
race or religion."71 A similar distinction between people as belonging or not belonging to a 
nation  is  prohibited  by  the  Labour  Code72.  This  is  considered  to  cover  the  concept  of 
national origin.73 The Penal Code, the Labour Code and the Equal Opportunities Law 2006-
396 of 31 March 200674 specified the sanctions and compensation that apply in the cases of 
discrimination  on  the  grounds  of  nationality.  An  overview  of  the  current  legislation  is 
provided below. 

Overview of the French legislation on sanctions and compensation 

Legislation 

More specific description 

Penal Code,  

Discrimination  (including  based  on  nationality)  is  punished  by  three  years  of 

Article 225-2 

imprisonment and a fine of €45,000 where it consists: 

1° of the refusal to supply goods or services; 

2° of obstructing the normal exercise of any given economic activity; 

3° of the refusal to hire, to sanction or to dismiss a person; 

4°  of  subjecting  the  supply  of  goods  or  services  to  a  condition  based  on  one  of  the 

factors referred to under Article 225-1;  

5° of subjecting an offer of employment, an application for a course or a training period 

to a condition based on one of the factors referred to under Article 225-1; 

6  °  of  refusing  to  accept  a  person  onto  one  of  the  courses  referred  to  under  2  °  of 

Article L.412-8 of the Social Security Code. 

Where the discriminatory refusal  […] is committed in a public place or in order to bar 

the access to this place, the penalties are increased to five years' imprisonment and to 

a fine of €75,000. 

Labour Code,  

Where  a  court  has  decided  in  the  favour  of  an  employee  claiming  discrimination,  and 

Article 

L1134-4 

and L1134-5 

where the employee refuses to continue his/her contract of employment, the industrial 

tribunal 

allocates 

compensation 

corresponding 

to:

1°  Compensation  corresponding  to  not  less  than  the  salary  of  six  months;

2° Compensation corresponding to  the  severance pay provided for  in Article L.1234-9 

[of the Labour code] or in the applicable collective agreement, or employment contract. 

Equal 

The  French  Equal  Opportunities  and  Anti-Discrimination  Commission  HALDE  may,  in 

69

70

71

72

73

74

In private law, the general legal regime relating to discrimination is to be found in codified law i.e. the Labour Code (LC), the Penal Code (PC) 
and  the  Civil  Code  (CC),  the  Law  no  2004-1486  of  30  December,  2004  creating  the  High  Authority  against  discrimination  and  for  Equality 
(HALDE) and the Law no 2008-496 of 16 May, 2008 implementing community law in the fight against discrimination (hereafter Law no 2008-
496). See: Latraverse, Sophie: Report On Measures To Combat Discrimination. Directives 2000/43/EC and 2000/78/EC. Country report France, 
2009. European network of experts in the non-discrimination field, p. 4. 
Latraverse,  Sophie:  Report  On  Measures  To  Combat  Discrimination.  Directives  2000/43/EC  and  2000/78/EC.  Country  report  France,  2009. 
European network of experts in the non-discrimination field, p. 79. 
French Penal Code, Article 225-1. 
French Labour Code, Article L1134-4. 
European network on free movement of workers, Thematic Report: Application of Regulation 1612/68, 2011, p. 5. 
Loi No 2006-396 du 31 mars 2006 pour l'égalité des chances. 

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Opportunities Act 

case it identifies discrimination as defined in the Penal Code and the Labour Code, and 

2006-396  of  31 

in  case  no  public  action  has  been  set  in  motion  due  to  the  discriminating  activities, 

March 2006,  

assign  to  the  offender  "a  penal  transaction"  involving  the  payment  of  a  transactional 

Article 41 

fine  which  cannot  exceed  €  3,000  in  the  case  of  an  individual  and  €  15  000  if  it  is  a 

legal  entity.  It  is  also  possible  for  HALDE  to  assign  compensation  for  damages 

experienced by the victim. The amount of the fine is set according to the seriousness of 

the act and the resources of the person in question. The proposal has to be validated 

by the prosecutor.

75

(The  former)  HALDE

76

  proposes  a  penal  transaction  to  both  parties,  and  in  case  they 

both  agree,  a  case  is  closed  directly.  In  case  the  parties  do  not  agree,  the  case  is 

forwarded to a judge, but no judicial proceedings are necessary. 

In France, the policy option has not led to any implementation costs. However, applying the 
provisions  on  sanctions  and  compensation  would  lead  to  financial  costs  on  employers  (or 
other parties) for paying the fine or compensation in the case that a court considered them 
guilty  of  discrimination  (provision  in  Penal  Code).  These  financial  costs  do,  however,  not 
directly result from the legal provision but from the court decision.  

Additionally, the provision in the Penal Code would lead to enforcement costs on the side of 
the  criminal  court  mainly  consisting  of  man-hour  costs  for  running  the  proceedings.  The 
Labour Code provision would not result in any other costs as it represents a cost rule that 
does not provide for an obligation. The provision in the Equal Opportunities Act would lead 
to  enforcement  costs  at  the  equality  authority  when  going  through  cases  on  nationality-
based discrimination and when proposing transactional fines. Similar costs would also take 
place within the judicial system, where the prosecutor would approve the proposals, when 
the  parties  would  disagree,  or  when  a  judge  would  take  a  decision.  These  costs  would  be 
additional  and  would  not  replace  costs  for  judicial  cases,  as  the  equality  authority  would 
normally take up cases that had not been brought to court. 

Stakeholders  interviewed agreed that the  existence  of the  legal  framework  is an  important 
tool  to  raise  awareness  about  discrimination  on  the  grounds  of  nationality.  It  was  not 
possible to show concrete impacts in quantitative terms of the existence of legislation. 

Statistics  provided  by  the  former  HALDE  show  that  there  has  been  an  increase  in  the 
number  of  complaints  concerning  discrimination  on  the  grounds  of  origin.  The  number 
increased  from  540  annual  complaints  in  2005  to  3,009  annual  complaints  in  2009.  The 
share of complaints due to this decreased from 38% in 2005 to 28.5% in 200977. However, 
this  category  covers  all  types  of  discrimination  on  the  grounds  of  origin,  not  only  that 
related to nationality, it is not possible to give a concrete picture about discrimination on the 
grounds of nationality in France. The representative of the Defender of Rights pointed out 
that where cases related to EU workers do exist, they are usually related to unemployed EU 
workers and their access to social benefits. 

Nevertheless,  the  legislation  is  not  being  used.  This  could  indicate  that  either  there  is  no 
need  for  it  (i.e.  discrimination  on  the  grounds  of  nationality  towards  EU  workers  is  not 
happening),  or  EU  workers  are  not  sufficiently  aware  of  their  rights  and  possibilities  to 
complain about cases of discrimination on the grounds of nationality. The lack of relevant 
statistics  makes  it  difficult  to  assess  which  one  of  the  above  is  more  likely.  Moreover,  in 
many  cases  the  EU  workers  are  not  members  of  unions  in  France,  so  the  unions  do  not 

75

76

77 

An  interview  with  a  representative  of  le  Défenseur  des  Droits  reveals  that  prosecutors  approve  of 
(former) HALDE's decision in most cases. 
On 1 May 2011 the HALDE was merged together with three other anti-discrimination organisation 
and is now called the Defender of Rights (Défenseur des Droits). 
HALDE Annual Report 2009, p. 16. 

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73 

   EN

 
 
 
                                                                                                                                                      
 
 
become  aware  of  the  situation  of  these  workers.  It  seems  fair  to  assume  that  the  policy 
option has little impact on potential ‘dark numbers’ such as these.  

The  legislation  has  not  led  to  an  increased  frequency  of  legal  action  against  nationality-
based discrimination. In fact, HALDE has, according to an interviewee, never used the right 
to  impose  fines  or  compensation  for  discrimination  of  an  EU  worker  on  the  grounds  of 
nationality. The other interviewees confirm this finding. The representative of CFTD did not 
know  of any cases  where nationality-based discrimination towards EU  citizens  resulted  in 
court  cases,  sanctions  or  compensation.  The  Information  and  Support  Organisation  for 
Foreigners  (GISTI)  and  a  confederation  of  employees  (CGT)  did  not  have  knowledge  of 
such cases either.  

Legal representatives – case study Sweden 

According  to  Chapter  6,  Section  2  of  the  Discrimination  Act,  both  employees’ 
organisations,  the  Equality  Ombudsman  and  non-profit  organisations  can  represent  an 
individual in court in cases concerning the Discrimination Act. Chapter 4, Section 5 of the 
Labour  Disputes  (Judicial  Procedure)  Act  stipulates  that  employees’  organisations  may 
represent  their  members  in  labour  disputes  where  the  employment  relation  is  bound  by  a 
collective  bargaining  agreement  concluded  by  that  organisation.  In  cases  where  an 
employees’ organisation has the right to represent the individual, the Ombudsman or a non-
profit  organisation  may  only  bring  an  action  on  behalf  of  an  individual  if  the  employees’ 
organisation does not do so78. 

A  non-profit  organisation  “whose  statues  state  that  it  is  to  look  after  the  interests  of  its 
members ”may bring an action on behalf of an individual who consents to this. Meanwhile, 
the association must be “suited to represent the individual in the case, taking account of its 
activities  and  its  interest  in  the  matter,  its  financial  ability  to  bring  an  action  and  other 
circumstances”79. 

The  possibility  to  use  legal  representatives  in  discrimination  cases  may  not  have  had  any 
measurable impact, e.g. in terms of an increased number of cases taken to court on behalf of 
EU  migrant  workers  in  Sweden  by  labour  unions,  the  Equality  Ombudsman  or  non-profit 
organisations.  Nevertheless,  all  interviewed  stakeholders  agreed  that  this  is  an  important 
measure  in  terms  of  providing  equal  opportunities.  Taking  a  discrimination  or  reprisal 
complaint  all  the  way  to  court  requires  mental  strength  and  financial  means  that  many 
“regular” people do not possess. The Swedish legislation provided for the abovementioned 
organisations to not only represent a person at court but to actually bring the case to court 
on  behalf  of  the  individual  (with  his/her  consent)  in  the  organisation’s  own  name.  Hence, 
any  costs  related  to  the  case  that  may  be  induced  on  the  plaintiff  would  be  borne  by  the 
representing organisation, not the alleged discrimination victim. 

Some of the non-profit organisations, such as the Swedish anti-discrimination bureaus, were 
locally present in different parts of the country. This means that the bureaus were physically 
more accessible to many people. The bureaus mostly attempted to solve the issues without 
taking the cases to court, which could be another reason why the impact of this measure is 
not visible through statistics on court cases. 

The anti-discrimination bureaus did take on smaller cases with requests for less than 20,000 
SEK, as the plaintiff was only obligated to pay their own costs in cases of loss in such cases. 
The organisations cooperated closely with the Equality Ombudsman, who could take on the 

78 

79 

Swedish  Code  of  Statutes:  Discrimination  Act  (2008:567);  published  25  June  2008;  Chapter  6, 
Section 2 
Ibid. 

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larger cases. Meanwhile, only a few cases actually went to court, as the bureaus often found 
alternative solutions to the conflicts. 

It  has  not  been  possible  to  assess  the  specific  costs  of  the  work  in  relation  to  nationality-
discrimination of these organisations. Considering that very few cases actually became court 
cases  brought  by  the  bureaus,  costs  related  to  legal  representation  could  be  considered 
insignificant. 

Victimisation – case study Sweden 

Chapter 2, Sections 18 and 19 of the Discrimination Act prohibit reprisals. An employer or a 
person alleged to have acted contrary to the provisions of Chapter 2 (Sections 5, 7, 9-17) or 
3  (Sections  15-16)  is  prohibited  from  subjecting  an  employee  (including  work  applicants, 
persons in training, temporary or borrowed labour) or individual to reprisals because he/she 
has  i)  reported  an  employer/person  for  acting  contrary  to  the  Act;  ii)  participated  in  an 
investigation under the Act, or iii) rejected or given in to harassment or sexual harassment 
on the part of the employer/the person alleged of discrimination80. Employees subjected to 
reprisals  in  violation  of  Section  18  may  try  the  case  at  Labour  court.  For  violations  of 
Section 19, the case can be tried at a general court (cf. above)81. 

The provisions on the prohibition of reprisals are even more difficult to assess the impact of. 
Again,  according  to  interviewees,  there  were  very  few  (if  any)  cases  being  raised  on  this 
issue.  However,  this  does  not  mean  that  the  provisions  are  unimportant.  Several 
interviewees  found  that  the  legal  prohibition  of  discrimination  and  reprisals  sends  an 
important signal about the attitude of the Swedish society on these issues, which may have a 
preventive effect even though the impact is not directly measurable. 

The retaliation measures of the Discrimination Act mainly have had an impact on employers 
in terms of presenting them with a risk of sanctions if they discriminate against employees 
or job seekers, or if they impose reprisals on anyone claiming discrimination. If a case on 
nationality-based  discrimination  was  taken  to  court,  a  concrete  impact  on  the  employer 
found guilty of discrimination could be a financial penalty and the costs of the trial. One 
might consider that the latter would have a relatively bigger impact on smaller companies 
with  fewer  (financial  and  human)  resources,  as  there  are  no  special  conditions  or 
exemptions for SMEs in relation to these provisions. 

Reversal of the burden of proof – case study Finland 

Introducing provisions on the reversal of the burden of proof is meant to make it easier for 
EU migrant workers to file complaints of discrimination.  

To assess the impacts of this policy option, Finland was chosen as a case study. In Finland, 
the provision on the reversal of the burden of proof has been in place since 2004. Reversal 
of the burden of proof is applicable to all cases of discrimination as long as the case fits in 
the scope of the law on equality (yhdenvertaisuuslaki), which covers nationality as a ground 
for  discrimination  (see  policy  option  3a).  The  reversal  of  the  burden  of  proof  is  not 
applicable to criminal cases in Finland. 82 

In the case study interviews, the reversal of burden of proof was identified as an important 
provision to address nationality-based discrimination. The reversal of burden of proof truly 
transforms the burden of proof in discrimination cases (though it is not applied in criminal 

80 

81 

82 

Swedish  Code  of  Statutes:  Discrimination  Act  (2008:567);  published  25  June  2008;  Chapter  2, 
Sections 18-19 
Swedish  Code  of  Statutes:  Discrimination  Act  (2008:567);  published  25  June  2008;  Chapter  6, 
Section 1 
Yhdenvertaisuuslaki 20.1.2004 § 17; http://www.finlex.fi/fi/laki/ajantasa/2004/20040021 

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law)  from  the  worker  to  the  employer.  This  is  a  significant  change  because  the  employer 
usually  has  the  relevant  information  on  the  accusation.  This  means  that  employers  cannot 
remain  passive  and  are  instead  forced  to  present  arguments  and  proof  that  they  have  not 
discriminated against the individual in question. 

It is important to note, however, that there must still be some clear evidence of the alleged 
discrimination. A worker cannot accuse the employer of discrimination without giving some 
support  for  the  case.  If  alleged  discrimination  has  been  established,  it  is  then  up  to  the 
employer to show that the difference in treatment can be explained by acceptable reasons. 
Thus, even with the reversal of burden of proof, the accuser has clear legal responsibility. 

The  interviewees  identified  some  challenges  that  arose  when  the  policy  option  was 
implemented in Finland. The interpretation of the law was not straightforward when it came 
to establishing what is sufficient in terms of presuppositions of discrimination to establish 
alleged  discrimination.  Furthermore,  the  reversal  of  burden  of  proof  increased  legal 
obligations of employers, and this raised some debate. 

The  interviewees  agreed  that  in  theory  the  reversal  of  burden  of  proof  helped  job-seekers 
and workers file complaints on discrimination. The reduction of the burden of the claimant 
was significant and made it easier to press discrimination cases. 

In  practice,  however,  the  provision  on  the  reversal  of  the  burden  of  proof  did  not 
significantly increase the number of legal actions. It did make it easier for the discriminated 
person to be compensated if they were ready to take a case to court, but going to court was 
still  a  big  strain  on  many  people.  It  required  both  time  and  money,  and  most  of  the 
discrimination  happened  in  relation  to  short-term  employment.  Therefore,  in  most  cases 
people could not see the benefit of taking legal action. 

The interviewees were not able to estimate the awareness of job-seekers and workers of the 
existence of the reversal of burden of proof. In general, the concept of the reversal of burden 
of  proof  was  not  very  well-known  and  the  employees  did  not  know  their  rights.  This  was 
said to especially be the case with non-national workers, causing a big barrier to the increase 
in the number of legal cases.  

The  reversal  of  burden  of  proof  may  increase  the  burden  for  employers  in  discrimination 
cases. However, as there was not a significant increase in the number of cases, the practical 
impacts of the reversal of burden of proof are not clear. Interviewees stated that the need to 
provide  evidence  of  the  alleged  discrimination  before  a  case  could  be  established  made  it 
hard for people to accuse their employers without solid grounds.  

Should  the  number  of  legal  cases  increase,  the  impact  on  employers  could  prove  to  be 
significant, as they would be obligated to carry the burden of proof. One interviewed expert 
explained that employers who would otherwise remain passive would be required to act and 
provide information and proof that the possible discriminatory decision could be explained 
by objective criteria. If the employer was to remain passive, there would be strong reasons 
to believe that the behaviour was in fact discriminatory. 

The  common  view  among  the  interviewed  stakeholders  was  that  larger  companies  were 
generally  more  aware  of  the  issue  and  more  able  to  act  accordingly.  This  could  result  in 
better  documentation  of  the  decision  made  in  a  recruitment  process,  making  it  possible  to 
show  the  logic  behind  the  decisions  if  the  employer  is  accused  of  discrimination.  There 
could be costs related to such adjustments of procedures to adapt to the situation, but there 
have not been any estimations of how much or in what way they would materialise. The ex-
ante  intervention  logic  suggests  that  the  potential  direct  costs  caused  by  an  increased 

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number  of  discrimination  cases  can  have  more  significant  financial  impacts  for  the 
employers. Meanwhile, in the long term, the reversal of burden of proof, together with other 
anti-discrimination  measures,  could  reduce  the  level  of  discrimination  altogether,  and  this 
would in turn also reduce the costs imposed by the court cases. 

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ANNEX 6 – RESULTS OF THE PUBLIC CONSULTATION AMONG CITIZENS 

Introduction 
In  total,  169  EU  citizens  responded  to  the  public  consultation  on  EU  initiatives  for  the 
enforcement of EU rules on the freedom of movement of workers. Respondents were from 
all Member States except Austria, Cyprus, Denmark, Estonia, Lithuania, Malta and Sweden.  

Figure  1  shows  the  percentage  dispersion  of  nationalities  among  the  respondents. 
Approximately  one-third  (31%)  of  the  respondents  were  Bulgarian,  11%  were  Polish,  and 
10%  were  French.  In  other  words,  more  than  50%  of  the  respondents  were  one  of  these 
three  nationalities.  The  Other  category  includes  the  remaining  12  Member  States,  each  of 
which  with  a  share  of  less  than  5%  of  the  respondents.  The  seven  Member  States  not 
represented among the respondents are not included in the figure.  

Figure 1: What is your country of nationality? (n=169) 

69%  (117)  of  the  respondents  worked  in  an  EU  Member  State  other  than  the  one  of  their 
nationality. Of these, 28 respondents worked in two or more Member States

83

. 

84

Figure  2
worked in another EU Member State or not.  

  specifies  the  division  of  respondents  by  nationality  according  to  whether  they  have 

83 

84 

21  respondents  have  worked  in  two  Member  States;  5  respondents  have  worked  in  three  Member 
States;  1  respondent  has  worked  in  seven  Member  States;  1  respondent  has  worked  in  20  Member 
States. Added to the 89 respondents who have worked in one other Member State, this gives a total 
number of 173 occurrences. 
The  reason  why  Romania  does  not  equal  5%,  as  in  Figure  1,  is  that  the  pie  chart  does  not  include 
decimals and the Romanian share has thus been rounded up from 4.73% to 5%. 

EN 

78 

   EN

 
 
                                                 
Figure 2: By nationality: Have you ever worked in another EU Member State than  the one of which you 
are a national? (n=169) 

Based  on  the  survey  responses,  the  most  popular  destinations  among  EU  workers  are  western 
European Member States. The UK is the most popular destination; 27% of the respondents not of 
UK nationality have worked in the UK. Other Member States where the respondents have worked 
are Germany (20%), Belgium (19%), France (15%), and the Netherlands (15%) (see Figure 3). 

Figure 3: In which Member State(s) have you worked? (n=117)

85

Working in another EU country 

Approximately  two-thirds  (65.8%)  of  the  117  respondents  who  have  worked  in  another  EU 
Member State were not informed about their rights under European law when they moved to the 
country. Of the 34.2% of respondents who were informed about their rights, 7.7% were informed 
by the national authorities, 2.6% were informed by a labour union, and 5.1% were informed by 
their employers. 18.8% of the respondents were informed through other sources, mainly friends, 
universities, or by searching on the internet, e.g. five respondents found information on EU web 
pages (see Table 1). 

Table 1: When moving to another EU country for work, by whom were you informed of your rights under 
European law? (n=117) 

By whom were you informed? 

No. of respondents

% of respondents

9

3

6

22

40

77

117

7.7%

2.6%

5.1%

18.8%

34.2%

65.8%

100%

National authorities 

Labour union 

Employer 

Other 

Total informed 

Not informed 

Total 

85 

EN 

The total percentage is higher than 100% because some of the respondents have worked in more than 
one Member State 

79 

   EN

 
 
 
 
                                                 
12  respondents  were  informed  about  their  rights  without  having  worked  in  another  Member 
State.  Eight  were  informed  by  national  authorities,  two  were  informed  by  employers,  one 
respondent  was  informed  by  a  labour  union,  and  another  respondent  found  information  on  the 
internet. It is noticeable that national authorities informed 66.7% of the respondents informed in 
their  own  country,  while  only  22.5%  of  the  respondents  informed  while  working  in  another 
Member State were informed by national authorities in the host country. This might indicate that 
the  respondents  chose  different  information  sources  depending  on  whether  they  were  in  their 
own  country  or  in  another  Member  State.  Figure  4  specifies  how  respondents  were  informed  in 
different  Member  States.  As  mentioned  in  Table  ,  40  of  the  respondents  stated  that  they  were 
informed  about  their  EU  rights.
  The  figure  also  shows  the  respondents  who  claimed  that  they 

86

were not informed and in which countries they worked.

87

Figure  4:  By  host  country:  By  whom  were  you  informed  of  your  rights  under  European  law? 
(n=173)

Of the 40 respondents who received information, only two (5%) did not find the information in a 
language  understandable  to  them.  Even  the  respondents  who  have  worked  in  multiple  EU 
Member States did not seem to have had any issues with the language in which the information 
was provided. 

Discrimination on the basis of nationality 

Figure 5 shows that 63% of the 117 respondents who have worked in another EU Member State 
have felt discriminated against because of their nationality.  

Figure 5: Have you ever felt discriminated against because of your nationality when working in another 
EU country? (n=117) 

86 

87 

Seven of these respondents have worked in more than one Member State and we cannot see from the 
questionnaire in which of the countries they were informed. The responses of these seven respondents 
are categorized as “not known” in Figure . 
The reason why n=105, and not 77 as in Table , is that some of the respondents have worked in more 
than one Member State. However, since they claim not to have been informed, we can assume that 
they have not been informed in any of the Member States, in which they have worked, and they can, 
thus, be included in the figure. 

EN 

80 

   EN

 
 
  
 
                                                 
Figure  6  groups  the  respondents  according  to  their  nationality.  The  figure  shows  important 
variations  between  nationalities.  For  example,  84%  of  the  Bulgarians  who  have  worked  in 
another Member State felt discriminated against because of their nationality at some point. This 
percentage  is  much  higher  than  the  one  of  the  total  number  of  respondents  (63%),  especially 
considering that the high number of Bulgarian respondents pulls the average up
. When looking 

88

at the other nationalities with a share equal to or higher than 5% of the respondents
, it is seen 
that  the  percentage  of  respondents  who  have  felt  discriminated  against  is  much  below  the 
average  (63%).  25%  of  the  French  respondents,  43%  of  the  Polish,  and  33%  of  the  UK 
respondents felt discriminated against while working in another EU Member State.  

89

Figure  6:  By  nationality:  Have  you  ever  felt  discriminated  against  because  of  your  nationality  when 
working in another EU country? (n= 117) 

Figure  7  shows  the  situations  in  which  respondents  felt  discriminated  against.  47%  of  the 
respondents  felt  discriminated  against  when  applying  for  a  job  in  another  Member  State,  while 
31%  of  the  respondents  experienced  discrimination  in  relation  to  their  working  conditions.  The 
third  most  common  situation  where  respondents  were  discriminated  against  was  when  applying 
for social benefits (16%). The respondents who felt discriminated against in other situations than 
the ones specified mentioned bank related issues, such as acquiring a national credit card in the 
host country or obtaining a loan. Other discrimination issues stated by respondents related to the 
acquisition of residence permits to third-country national family members. 

Figure 7: In which situations did you feel discriminated against? (n=74) 

88 

89 

If all Bulgarian respondents were excluded from the questionnaire, the share of respondents who have 
been discriminated against would be 48% 
FR, PL, and the UK (cf. Error! Reference source not found.) 

EN 

81 

   EN

 
 
 
                                                 
A  high  percentage  of  the  Bulgarian  respondents  felt  discriminated  against  because  of  their 
nationality when working in another EU country. Compared to the average (47%), the number of 
Bulgarians  discriminated  against  when  applying  for  a  job  (78%)  is  very  high.  Some  of  the 
Bulgarian  respondents  mentioned  the  transition  schemes  as  a  factor,  which  complicated  the 
procedure  of  applying  for  a  job  because  EU2  citizens  were  required  to  have  a  working  permit 
when they applied for a job in another EU Member State. According to the Bulgarian respondents, 
employers  often  found  too  many  bureaucratic  obstacles  when  they  wished  to  employ  a  EU2 
citizen,  and  therefore  they  often  gave  the  job  to  a  person  of  another  European  nationality.  For 
this reason, it seemed nearly impossible to Bulgarian and Romanian respondents to find a job in 
other Member States, and some of them found it necessary to work in the informal sector. They, 
therefore,  sometimes  felt  treated  like  third-country  nationals,  or  worse.  For  example,  one 
Bulgarian  respondent  referred  to  a  fine  of  GBP  1,000,  applicable  only  to  Romanians  and 
Bulgarians caught working without a work permit. Other situations where many of the Bulgarian 
respondents  felt  discriminated  against  were  with  respect  to  working  conditions  (39%),  social 
benefits  (29%),  and  housing  (20%).  In  most  of  the  situations,  the  number  of  Bulgarian 
respondents  discriminated  against  was  above  average.  The  only  situations in  which  the  number 
of  Bulgarian  respondents  was  equal  to  or  below  the  average  were  access  to  training,  education 
for children, and the “other” category.  

Relatively few French and UK respondents have felt discriminated against. The few who claimed 
to  have  been  discriminated  against  mostly  dealt  with  issues  related  to  working  conditions, 
bureaucratic  procedures  related  to  social  benefits,  or  other  issues,  e.g.  third-country  national 
family members who were not always treated according to EU law.  

Three out of seven Polish respondents have been discriminated against, mainly when applying for 
a  job  or  with  respect  to  working  conditions.  The  Polish  respondents  stated  that  Polish  workers 
were often paid a lower salary than nationals of the host country. Furthermore, they found that 
there was sometimes a discriminative attitude towards Polish workers.  

Figure 8 shows the Member States where the respondents were discriminated against. Of the five 
most popular Member States for EU migrant workers (among the respondents), the Netherlands 
is  the  country  with  the  highest  percentage  of  nationality  based  discrimination.  66.7%  of  the 
respondents  who  have  worked  in  the  Netherlands  felt  discriminated  against,  while  only  16.7% 
have not
. In the UK, the corresponding figure is 45%, in France 47%, in Germany 26%, and in 
Belgium  18%.  These  shares  may  seem  small  compared  to  the  total  percentage  of  respondents 
who  have  been  discriminated  against  (see  Figure  ).  However,  the  amount  of  respondents  in  the 
“not  known”  category  is  relatively  high,  so  the  true  percentage  of  respondents  who  have  been 
discriminated against may be higher for some Member States.  

90

90 

The remaining 16.7% are respondents who have been discriminated against but who have worked in 
other countries, besides the Netherlands. 

EN 

82 

   EN

 
 
                                                 
Figure  8:  By  host  country:  Have  you  ever  been  discriminated  against  because  of  your  nationality  when 
working in another EU country? (n=173) 91

The  respondents  who  experienced  discrimination  in  Belgium  mentioned  the  special  need  of  a 
working permit as their biggest obstacle. Other respondents mentioned unjustified, bureaucratic 
obstacles when trying to create a bank account, as well as problems with the Belgian system of 
calculating vacation days. 

In Germany, 17% of the respondents felt discriminated against when applying for a job, and 13% 
with respect to working conditions. The discrimination issues (which are not related to transition 
schemes) included the need for university studies from another Member State to be approved, as 
well  as  lower  salaries  and  worse  working  conditions  for  migrant  workers  (including  EU  migrant 
workers) compared to the German employees. 

In France, EU2 nationals also experienced discrimination issues related to the transition schemes. 
One Bulgarian respondent had to find a job as a posted worker. However, posted workers do not 
work under the same regulations as national workers, and the respondent claimed that the salary 
and working conditions were not as good as the ones for French nationals.  

12 out of 14 of the respondents who worked in the Netherlands were of Bulgarian or Romanian 
nationality.  Thus,  the  main  issues  regarding  discrimination  were  the  transition  scheme  and  the 
bureaucratic  obstacles  when  applying  for  the  required  work  permit.  This  might  explain  why  the 
Netherlands  was  the  Member  State  with  the  highest  share  of  respondents  discriminated  against 
(67%

).  

92

In the UK, EU2 nationals also felt discriminated against because of the transition scheme. Apart 
from  these  issues,  an  Irish  respondent  was  discriminated  against  when  requesting  holiday  pay, 
and  in  another  occasion  was  rejected  access  to  training  even  though  she  had  the  rights  to 
training according to EU law. 

Recourse against discrimination 

Of  the  74  respondents  discriminated  against  while  working  in  another  EU  Member  State,  only 
10.8% (8 respondents) were able to seek recourse under national law. One respondent obtained 
a  successful  response,  while  five  did  not.  The  respondents  were  also  asked  whether  national 
authorities  applied  European  law  (Regulation  1612/68  on  freedom  of  movement  for  workers) 
when  the  respondents  challenged  the  discrimination  at  the  national  level.  Two  respondents 
answered “yes” while three answered “no”, and three respondents left the question unanswered. 

91 

92 

“Respondents  who  have  felt  discriminated  against”  only  includes  respondents  who  have  worked  in 
one  single  Member  State.  “Respondents  who  have  not  felt  discriminated  against”  includes  all 
respondents who have worked in another Member State “Not known” includes respondents who have 
worked in multiple Member States and felt discriminated against in one or more of the host countries. 
However, we cannot see from the questionnaire, in which country/countries they were discriminated 
against. 
The true percentage is possibly higher since some of the respondents categorised as “not known” may 
have been discriminated in the Netherlands 

EN 

83 

   EN

 
 
 
                                                 
Two of the eight respondents stated that they were supported by an organisation. However, none 
of them specified what kind of organisation they were supported by.  

Figure  99  illustrates  the  eight  Member  States  where  respondents  were  able  to  seek  recourse 
under  national  law  (BE,  DE,  ES,  HU,  IE,  LU,  SE,  UK)
.  The  figure  also  shows  the  number  of 
respondents  who  were  discriminated  against  in  these  Member  States.  In  four  of  the  eight 
Member  States  (BE,  DE,  ES  and  UK),  the  number  of  discriminated  respondents  is  significantly 
higher than the number of respondents who were able to seek recourse. This could indicate that 
many  of  the  respondents  discriminated  against  have  not  taken  the  case  any  further,  e.g.  by 
reporting the act of discrimination.  

93

Figure 9: Were you able to seek recourse under national law (n=46) 

93 

Based on the Member States where respondents, who have been able to seek recourse under national 
law, have worked. NB: Two of the respondents have worked in more than one Member State 

EN 

84 

   EN

 
                                                 
Removing obstacles to free movement of workers 

The  questionnaire  turned  to  possible  solutions  for  removing  obstacles  to  the  free  movement  of 
workers.  In  general,  the  respondents  were  not  satisfied  with  the  level  of  protection  against 
nationality-based  discrimination  in  their  host  countries,  even  though  many  respondents  stated 
that they consider the level of protection to be an important factor when making the decision on 
whether or not to go to another EU Member State for work (see Table 2). 

Table 2: Removing obstacles to free movement of workers (n=117) 

Agree 
strongly 

Agree 

No 
opinion 

Disagree 

Disagree 
strongly 

No.  % 

No.  % 

No.  % 

No.  % 

No.  % 

6 

5% 30

26% 16

14% 40  34% 

25

21%

49  42% 36

31%

78  67% 30

26%

9

2

8% 18  15% 

2%

6 

5% 

5

1

4%

1%

Does  your  host  country 
protect workers? 

Does  this  influence  your 
decision? 

Should workers be better 
protected? 

According  to  most  of  the  117  respondents  who  have  worked  in  another  EU  Member  State,  the 
host country where they worked did not adequately protect EU migrant workers (see 2 and 10). 
Only  about  one-third  (31%)  of  the  respondents  were  satisfied  with  the  level  of  protection  of 
workers  from  other  EU  Member  States,  while  55%  disagreed  or  strongly  disagreed  with  this. 
Furthermore,  many  respondents  (73%)  either  agreed  or  strongly  agreed  that  the  level  of 
protection against discrimination on the grounds of nationality influenced their decision to go and 
work  in  another  EU  Member  State.  Almost  all  of  the  respondents  (93%)  believed  that  more 
should be done to protect workers in another EU Member State.  

Figure 10: Removing obstacles to free movement of workers (n=117) 

Figure  111 shows how the respondents perceived the level of protection of workers according to 
their nationality. The figure gives an assessment of whether, i.e., better protection of EU workers 
against  nationality-based  discrimination  is  more  important  to  some  nationalities  than  others. 
There is a clear tendency that many respondents were dissatisfied, regardless of their nationality. 
Close  to  two-thirds  of  the  Bulgarian  respondents  (62%)  were  dissatisfied  with  the  level  of 
protection. Likewise, five out of six UK respondents did not believe that workers were adequately 
protected  in  the  EU  Member  States  where  they  have  worked.  The  figure  corresponds  to  the 
conclusions  presented  above  in  Figure  ,  which  showed  that  84%  of  the  Bulgarian  respondents 
have  been  discriminated  against  while  working  in  another  EU  Member  State.  This  matches  the 
relatively  high  percentage  of  Bulgarian  respondents  who  were  dissatisfied  with  the  level  of 
protection in their host country. 

EN 

85 

   EN

 
 
 
 
 
Figure  11:  By  nationality:  Does  the  host  country  adequately  protect  workers  against  discrimination  on 
grounds of nationality? (n=117) 

Figure  12  shows  the  level  of  satisfaction  related  to  the  protection  against  nationality-based 
discrimination  in  the  EU  Member  States  where  respondents  have  worked.  When  looking  at  the 
five most frequent countries – BE, DE, FR, NL, and UK (see Figure ) – it can be seen that most of 
the respondents who have worked in one or more of these countries were not satisfied with the 
level  of  protection.  70%  of  the  respondents  who  have  worked  in  Belgium  either  disagreed  or 
disagreed  strongly  with  the  statement  that  the  level  of  protection  was  adequate.  The  situation 
was  clearly  better  in  France,  where  only  27%  of  the  respondents  were  dissatisfied,  while in  the 
Netherlands the corresponding figure was 86%, and in the UK 70%. Added to this, some of the 
respondents  were  neutral  on  these  matters,  therefore  they  stated  that  they  did  not  have  an 
opinion on the level of protection of workers. 

Figure 12: By host country: Does the host country adequately protect workers against discrimination on 
grounds of nationality? (n=89) 

Figure  illustrates, based on the nationality of the respondent, whether the level of protection of 
workers would influence the respondents’ decision to go to another EU Member State to work. In 
general, the respondents valued the protection of workers and found that the level of protection 
affected  their  decision  to  go  to  another  Member  State  to  work.  The  four  most  frequent 
nationalities  were  BG,  FR,  PL  and  the  UK.  80%  of  the  Bulgarian  respondents  agreed  or  agreed 
strongly that their decision to go to another EU Member State to work would be affected by the 
level  of  protection  in  the  given  Member  State.  The  figure  is  even  higher  for  the  French 
respondents  (83%),  while  it  is  considerably  lower  for  the  respondents  from  Poland  (57%),  and 
the UK (67%).  

EN 

86 

   EN

 
 
 
Figure  13:  By  nationality:  Would  the  level  of  protection  of  workers  influence  your  decision  to  go  to 
another EU Member State to work? (n=117) 

Turning to the most frequent host countries, many of the respondents who have worked in these 
countries considered the level of protection of workers important when deciding to go to another 
EU  Member  State  to  work  (see  Figure  ).  The  percentages  of  respondents  who  either  agreed  or 
strongly  agreed  that  the  level  of  protection  influenced  their  decision  show  no  clear  differences 
between  the  countries,  as  all  are  somewhere  between  60-82%.  The  percentages,  to  some 
degree, match the ones in Figure 15. This might be because of the respondents’ experiences with 
the level of protection of workers when working in the respective countries, and, therefore, they 
believed  that  the  level  of  protection  would  influence  their  decision  when  going  to  other  EU 
Member States to work.  

Figure  15:  By  host  country:  Would  the  level  of  protection  of  workers  influence  your  decision  to  go  to 
another EU Member State to work? (n=89) 

Figure  35  shows,  according  to  the  nationality  of  the  respondents,  whether  the  respondents 
believed  that  workers  should  be  better  protected  when  working  in  another  EU  Member  State. 
93%  of  the  respondents  either  agreed  or  strongly  agreed  with  this.  Only  seven  (out  of  117) 
respondents  disagreed  or  strongly  disagreed  that  workers  should  be  better  protected.  Although 
there  are  significant  percentage  variations,  some  of  the  nationalities  were  represented  by  very 
few respondents and it is, therefore, not possible to make any valid conclusions on whether the 
way  in  which  respondents  have  answered  the  question  can  be  related  to  the  nationality  of  the 
respondents. However, the high percentage of respondents who believed that workers should be 
better protected when working in another EU Member State is a strong indication of the existence 
of hindering factors for the free movement of EU workers. 

EN 

87 

   EN

 
 
 
Figure 3: By nationality: Should workers be better protected when working in another EU Member State? 
(n=117) 

Figure 4 is based on the Member States where respondents have worked. It clearly shows that a 
high share of the respondents believed that the protection of workers in other EU Member States 
should  be  improved.  In  most  of  the  host  countries
,  all  of  the  respondents  agreed  or  agreed 
strongly that there was a need to improve the protection of EU migrant workers.  

94

Figure  4:  By  host  country:  Should  workers  be  better  protected  when  working  in  another  EU  Member 
State? (n=89) 

The  above  analysis  clearly  indicates  that  the  respondents  believed  more  should  be  done  to 
protect  workers  when  they  work  in  another  EU  Member  State.  All  respondents  were  likewise 
requested to comment on possible measures, as well as their importance, they thought could be 
taken in order to improve the protection against nationality based discrimination. 

According  to  the  respondents,  the  best  way  to  achieve  better  protection  of  workers  was  by  the 
adoption of EU legislation that reinforces the rights of EU migrant workers (see Figure 5). 62% of 
the  respondents  gave  this  measure  first  priority.  This  is  clearly  higher  than  the  remaining 
measures,  which  are  all  supported  by  approximately  one-third  of  the  respondents
.  The  other 
category  contains  various  suggestions,  e.g.  some  Bulgarian  and  Romanian  respondents 
suggested  that  the  transition  scheme  be  removed  so  that  EU2  nationals  could  have  the  same 
rights as all other EU nationals. One respondent suggested that registration of EU nationals and 
their  family  member  be  made  optional,  as  has  been  done  in  the  UK.  Others  believed  that  the 
whole legislation should be changed and/or that strong action should be taken against countries 

95

94 
95 

With the exception of EE, FR, LU, and the UK. 
The percentages do not add to 100% because some of the respondents have considered more than one 
measure as first priority.  

EN 

88 

   EN

 
 
 
                                                 
who fail to transpose EU law. Another suggestion was to make a personal EU registration number 
for  all  citizens  in  order  to  ease  administrative  matters  concerning  EU  migrant  workers. 
Furthermore,  one  of  the  respondents  believed  that  contact  points  in  national  authorities  should 
speak at least one of the official EU languages. 

Figure 5: How could workers be better protected when working in another EU Member State? (n=117) (1 
= most important, 6 = least important) 

EN 

89 

   EN

 
 
ANNEX 7- RESULTS OF THE PUBLIC CONSULTATION AMONG ORGANISATIONS 

Introduction 

In  total,  74  organisations  responded  to  the  public  consultation  on  EU  initiatives  for  the 
enforcement  of  EU  rules  on  freedom  of  movement  for  workers.  Figure  6  illustrates  the  share  of 
the respondents by organisation type. Labour unions were the most active in contributing to the 
consultation  and  represent  roughly  one-fourth  (27%)  of  the  respondents,  while  NGOs  (17%), 
national  authorities  (15%)  and  employer  organisations
  (12%)  were  also  widely  represented. 
Respondents  also  included  private  companies  (7%)  and  regional  and  local  authorities  (7%  and 
3%,  respectively).  A  large  share  of  the  respondents  (12  %)  belongs  to  other  types  of 
organisations  than  those  mentioned  above.  These  other  organisations  include  non-profit 
organisations,  an  association  representing  independent  professionals,  a  trade  association  and  a 
national church

96

97

. 

Figure 6: What kind of organisation do you represent? (n=74) 

98

The  organisations  were  based  in  23  different  Member  States,  excluding  Ireland,  Lithuania, 
Luxembourg  and  Romania.
  Figure  7  shows  that  organisations  from  Germany  (14%) 
represented  a  large  share  of  the  respondents.  Other  Member  States  with  a  minimum  of  five 
organisations  contributing  to  the  consultation  were  Poland  (10%),  Belgium  (8%),  Spain  (8%), 
the Netherlands (7%) and United Kingdom (7%). When more than one organisation responded to 
the  consultation  from  a  Member  State,  the  types  of  organisations  varied  in  all  the  Member 
States.  However,  it  is  worth  noting  that  all  the  organisations  based  in  Poland  represented  the 
public sector. 

Figure 7: In which country of the European Union is your organisation based? (n=74) 

96 
97 

98 

A private company, a state owned company and a hospital were removed to more suitable categories. 
An  employers'  organisation,  a  national  labour  inspectorate  and  national  employment  offices  were 
removed to more suitable categories. 
One of the respondents is based in several Member States without further specifying the respective 
countries.  Therefore  this  respondent  is  not  included  below  in  figure  2  or  other  tables  concerning 
respondents  by  country.  Also 
in  Belgium  are  clearly 
European/worldwide rather than national and therefore included in the category multiple countries 

three  other  organisations  based 

EN 

90 

   EN

 
 
                                                 
Awareness of the rights of free movement of workers 

All  74  of  the  respondents  were  aware  of  workers'  rights  under  European  legislation  when  they 
move to another country of the European Union. Table 2 shows that 70% of these organisations 
provided  information  to  the  EU  workers  about  their  free  movement  rights.  Only  one  German 
labour  union  stated  that  it  did  not  provide  its  information  in  a  language  understandable  to  the 
worker, while one of the organisations did not specify if the information it provided online could 
be understood by workers involved. 

Table 2: Awareness of workers' rights and provided information 

Question 

Are  you  aware  of  workers'  rights 
under  European  legislation  when 
they  move  to  another  country  of 
the European Union? (n=74) 

Does  your  organisation  provide 
information  to  EU  workers  about 
their 
rights? 
(n=74) 

free  movement 

Is  this  information  understandable 
to the worker? (n=51) 

No. of YES 
answers 

% 
of 
respondents 

of 

No. 
NO 
answers 

% 
of 
respondents 

74

100%

0 

0%

52

50

70%

22 

30%

98%

1 

2%

The  channels  used  to  provide  information  to  EU  workers  about  their  free  movement  rights  are 
presented in Figure 8. Information was most commonly provided at the workplace (25%) and on 
the  internet  (23%).  Brochures  were  disseminated  in  10%  of  the  organisations  that  provided 
information,  and  only  2%  of  respondents  used  the  intranet  for  this  purpose.  In  addition  to  the 
above-mentioned  channels,  a  large  share  of  information  was  provided  by  other  means,  such  as 
telephone consultation, seminars, trainings, membership publications and personal meetings. 

EN 

91 

   EN

 
 
 
Figure 8: Please specify how your organisation provides information? (n=74) 

99

Figure  9  illustrates  the  differences  between  the  organisation  types  who  provided  information.  It 
can  be  noted  that,  while  all  the  respondents  from  regional  and  local  authorities  provided 
information,  95%  of  labour  unions
  and  90%  of  national  authorities  also  disseminated 
information  to  EU  workers  about  their  free  movement  rights.  The  channels  used  to  provide 
information  were  the  most  diverse  among  labour  union  organisations.  These  organisations 
provided information at the workplace and through internet, brochures, and intranet, as well as 
by  other  means  such  as  personal  consultation,  flyers,  articles  in  newspapers  and  member 
publications.  In  addition  to  labour  unions,  information  at  the  workplace  was  widely  provided 
across  other  types  of  organisations,  including  regional  and  local  authorities,  private  companies 
and  other  types  of  organisations  (non-profit  organisations,  employment  offices,  a  national 
church).  However,  respondents  from  employer  organisations,  NGOs  and  national  authorities  did 
not  provide  information  at  the  workplace.  Moreover,  internet  was  indicated  as  a  source  of 
information by various types of organisations, including national and local authorities and NGOs. 
Employer  organisations  disseminated  information  the  least  (33%),  and  most  of  this  information 
was provided by brochures. A large share of labour unions, NGOs, national and local authorities, 
as well as private companies used various other ways to provide information to EU workers. For 
example, many of the NGOs organised personal meetings where legal advice was provided. 

Figure 9: By organisation type: Please specify how your organisation provides information? (n=74) 

99 

When we refer to a specific type of respondents, we always refer to the organisations who responded 
to the questionnaire. 

EN 

92 

   EN

 
 
 
                                                 
100

101

Figure  10  concentrates  on  differences  between  the  Member  States  who  provided  information.  In 
ten Member States,
 all of the respondent organisations provided information to EU workers on 
the  free  movement  of  rights.  On  the  other  hand,  50%  or  less  of  the  organisations  in  seven 
Member  States
  provided  information  to  the  EU workers,  although  the  amount  of  respondents 
was limited in most of these countries. Both Germany and Spain had a relatively high number of 
respondents.  All  of  the  labour  unions  provided  information  but  none  of  the  employer 
organisations  did.  In  Germany,  other  respondents  that  provided  information  included  a  private 
company and a NGO. In Spain, a respondent from a NGO provided information, while a national 
authority did not. 

Figure 10: By Member State: Please specify how your organisation provides information? (n=74) 

Legal support to migrant workers 

Table  3  and  Figure  11  compare  the  answers  regarding  the  possibility  to  take  action  on  behalf  of 
migrant workers in the country where the organisations were based, and the actual support that 
the  organisations  provided.  It  can  be  seen  that  more  organisations  provided  legal  advice  to 
workers discriminated against on the grounds of their nationality (58%) than claimed to have the 
possibility  to  take  action  on  behalf  of  migrant  workers  in  the  Member  State  where  they  were 
based (51%). Also, around half (51%) of the organisations provided other forms of support to EU 
workers discriminated against on the grounds of nationality. 

Table 3: Legal/non-legal support to migrant workers 

Support to migrants workers 

Yes 

No 

Possibility  to  take  action  on  behalf  of  migrant  workers 
(n=72) 

Legal advice to workers discriminated against on the basis 
of their nationality (n=73) 

Any  other 
discriminated against on the basis of nationality (n=74) 

form  of  support  to  EU  workers  when 

51% 

58% 

51% 

49%

42%

49%

Taking a closer look at the answers by different types of organisations presented in Figure 11, it 
can be seen  that labour unions claimed the most often to have  the possibility to take action on 
behalf  of  migrant  workers  in  the  country  where  they  were  based.  These  organisations  also 
provided  legal  advice  the  most  often,  as  well  as  other  support  to  migrant  workers.  Moreover, 
around  80%  of  the  national  authorities  and  private  companies  and  70%  of  NGOs  took  action; 

100 
101 

BG, CY, CZ, DK, EE, EL, IT, LV, MT, PL. 
AT, ES, FI, FR, PT, SI, SK, SE. 

EN 

93 

   EN

 
 
 
                                                 
even  more  of  these  organisations  provided  legal  advice.  Half  of  the  local  authorities  had  the 
possibility  to  take  action,  and  these  also  provided  legal  and  other  support  to  workers.  It should 
be  noted  that  all  of  the  employer  organisations  denied  having  a  possibility  to  take  an  action  on 
behalf  of  migrant  workers,  and  only  around  20%  of  the  organisations  provided  any  kind  of 
support to EU workers discriminated against on the grounds of nationality. 

Figure 11: Support to migrant workers by type of the organisation 

The three questions presented above are analysed one by one in the following. 

Does  your  organisation  have  the  possibility  to  take  an  action  on  behalf  of  migrant 
workers in the country of the European Union where you are based? Please specify. 

102

103

When looking at the corresponding figures in terms of Member States presented in Figure 12, it 
can be seen that in several Member States
 the majority of the organisations had the possibility 
to  take  an  action  on  behalf  of  migrant  workers.  However,  this  was  not  possible  in  the  Czech 
Republic, Hungary or Slovenia.
 Also, nine out of ten organisations denied having the possibility 
104

,  where  labour  unions  have  different  views  on  the  issue.  Among 
to  take  action  in  Germany
other Member States with at least five respondents, less than half of the organisations were able 
to take an action in Poland and Spain, whereas half of the organisations had the possibility to act 
in Belgium
. As in Germany, some of the labour unions stated they had the possibility to take 
an action in Spain, whereas some did not. In the case of Poland, it clearly depended on the type 
of public authority on whether the organisation could take action. 

105

Figure  12:  Possibility  to  take  an  action  on  behalf  of  migrant  workers  in  the  country  of  the  European 
Union where you are based by Member State (n=72) 

102 
103 

104 

105 

DK, EE, EL, IT, LV, MT, NL, PT, UK. 
These  organisations  include  national  authority  in  Czech  Republic;  labour  union,  national  authority, 
other organisation in Hungary; and employers' organisation in Slovenia. 
Organisation  not  having  the  possibility  to  take  action  include:  employers'  organisations,  labour 
unions, NGOs, a private company, while a labour union claims to have the possibility. 
Organisations  having  the  possibility  to  take  action  include:  NGOs  and  a  labour  union,  while  an 
employers' organisation, a NGO and a non-profit organisation do not. 

EN 

94 

   EN

 
 
                                                 
106

Actions the organisations could take included various measures, mainly dependent on the type of 
organisation.  Legal  advice  was  mentioned  by  10
  out  of  14  labour  unions.  However,  half  of 
these  organisations  based  in  Germany,  Latvia  and  the  Netherlands  specifically  mentioned 
restrictions if workers were not members of these unions. Other commonly mentioned measures 
among  labour  unions  included  engaging  in  social  dialogue,  informing  the  national  labour 
inspectorate, and providing other advice to migrant workers. National authorities that contributed 
to  the  consultation  mentioned  the  possibility  to  raise  infringement  proceedings  and  make 
proposals  for  amending  legislation.  Five
  out  of  seven  NGOs  specified  that  the  organisations 
were  able  to  provide  legal  advice.  Another  specified  possibility  among  NGOs  included  advocacy 
work  on  providing  help  on  issues  concerning  access  to  housing  and  access  to  emergency 
accommodation. Moreover, one of the NGOs explained that some of its member organisations set 
up transnational projects to assist migrant workers. As part of these projects, advice on general 
rights and labour laws and assistance in negotiating decent working contracts was provided prior 
to the departure. After arrival, a contact person was assigned to the migrant, and migrants also 
received practical assistance with tax issues and registration with the local authorities. In another 
example,  the  Finnish  Evangelical  Lutheran  Church  provided  financial  aid,  legal  and  other 
consultation.  Finally,  a  private  company  in  the  United  Kingdom  provided  support  by  offering 
guidance on access to the labour market. 

107

106 
107 

These organisations are based in BE, DE, ES, FR, LV, NL, UK. 
These organisations are based in BE, AT, UK, PT. 

EN 

95 

   EN

 
 
                                                 
Does your organisation provide legal advice to workers who have been discriminated 
against on the basis of their nationality? 

As  seen  in  Figure  13,  the  majority  of  the  respondents  provided  legal  advice  in  most  of  the 
Member  States.  However,  in  Finland  and  Slovenia,  none  of  the  organisations  provided  legal 
advice  to  workers  who  have  been  discriminated  against  on  the  basis  of  nationality.
  Among 
Member  States  with  at  least  five  respondents,  a  clear  majority  of  Spanish,  Dutch  and  British 
organisations  provided  legal  aid,  while  in  Belgium
  half  of  them  did.  In  Germany  and  Poland, 

108

109

less than half of the organisations provided legal advice for those discriminated against

110

. 

Figure 13: Legal advice to workers who have been discriminated against on the basis of their nationality 
by Member State country (n=72) 

Does  your  organisation  provide  any  other  form  of  support  to  EU  workers  when 
discriminated against on the basis of nationality? 

In  most  Member  States,  other  forms  of  support  than  legal  advice  were  provided,  as  shown  in 
111 where such support  was not provided. 
Figure 14. There were, however, some Member States
Among  those  Member  States  where  a  minimum  of  five  respondents  were  based  (Germany, 
Poland, Spain, the Netherlands and United Kingdom), at least half of the organisations provided 
other forms of support, while in Belgium

 only two out of six organisations claimed to do that. 

112

Figure  14:  Any  other  form  of  support  to  EU  workers  when  discriminated  against  on  the  basis  of 
nationality by Member State (n=73) 

108 

109 

110 

111 
112 

These organisations include employers' organisation and a national church in Finland and employers' 
organisation in Slovenia.  
Organisations providing legal advice include: a labour union and most of NGOs, while an employers' 
organisation, a NGO and a non-profit organisation do not. 
Organisations  providing  legal  advice  in  Germany  include:  labour  unions  and  a  NGO,  while 
employers' organisations, most of NGOs and a private company do not. In case of Poland it depends 
on the type of public authority. 
CY, DK, EL, MT, SI, SK. 
Organisation providing other form of support include: a labour union and a NGO, while employers' 
organisation, a NGO and a non-profit organisation do not. 

EN 

96 

   EN

 
 
 
                                                 
In other cases, the nature of support varied according to the type of organisation rather than the 
country where respondents were based. For national authorities, other support included support 
from employment offices and labour inspectorates. Other organisations specified the provision of 
practical support and consulting as other support. The support and consulting usually consisted of 
providing information about the workers' rights, as well as advising what action could be taken in 
case  of  discrimination.  In  addition  to  providing  practical  support  and  consulting  in  a  number  of 
Member  States
,  labour  unions  were  involved  with  awareness-raising  campaigns  or  similar 

113

activities

114

, general advocacy work

115

 and referring to an equality body

116

. NGOs were involved 

with general advocacy work

117

 and referred to an equality body

118

 in addition to practical support 

and  consulting

119

.  Employer  organisations  were  involved  in  awareness-raising  campaigns  or 

similar  activities  on  the  rights  of  freedom  of  movement  of  workers

120

  as  well  as  in  general 

121

advocacy  work
.  The  national  church  in  Finland  was  involved  in  general  advocacy  work  in 
addition  to  providing  practical  support  and  consulting.  General  advocacy  work  mentioned  above 
included producing reports, supporting collective agreements, public relations towards the media 
and  lobbying.  Awareness-raising  campaigns  consisted  mainly  of  providing  or  supporting  a 
website. 

113 
114 
115 
116 
117 
118 
119 
120 
121 

BG, DE, ES, IT, an European wide organisation. 
DE, FR. 
DE. 
NL. 
BE, DE, a worldwide organisation. 
BE. 
DE, ES, PL, UK, a worldwide organisation. 
UK. 
DE. 

EN 

97 

   EN

 
 
                                                 
Removing obstacles to free movement of workers 
According  to  your  experience  what  are  the  main  problems  that  EU  citizens  face  when 
working in another country of the European Union? 

As  can  be  seen  from  Figure  15,  the  majority  of  the  respondents  (61%)  considered  working 
conditions  (e.g.  different  pay,  different  career  development)  as  one  of  the  main  problems  EU 
citizens  faced  when  working  in  another  country  of  the  European  Union.  This  is  clearly  more  than 
those  who  considered  recruitment  (e.g.  different  recruitment  criteria)  (46%)  and  access  to  social 
benefits  (e.g.  study  grants,  transport  fare  reductions,  minimum  subsistence  payments)  (43%)  as 
main  obstacles.  Problems  in  terms  of  access  to  housing  were  recognised  by  35%  of  the 
respondents, while 24% considered access to training and 19% access to tax advantages (e.g. non 
deductibility  of  living  expenses  incurred  abroad,  alimony  payments  or  contributions  to  private 
medical insurance abroad, taxation on gross instead of net income or higher taxation of foreigners 
in the host Member State) among main problems. Problems regarding access to education for the 
workers’  children  in  the  educational  system  of  the  country  where  they  work  (12%)  and 
membership of the trade unions (9%) were the least indicated obstacles. In addition to the above 
mentioned  problems,  other  aspects  included  lack  of  adequate  information  and  personal 
consultation,  language  barriers,  time-consuming  procedures  and  recognition  of  qualifications.  The 
minority of 7% thought EU citizens do not face problems. 

Figure  15:  Main  problems  that  EU  citizens  face  when  working  in  another  country  of  the  European  Union 
(n=74) 

When looking at the share of responses separately per each organisation type, it can be seen from 
Table 4 that labour unions, as well as local, regional and national authorities, commonly considered 
working  conditions  as  the  main  problem.  In  fact,  all  of  the  labour  unions  and  local  authorities 
considered  this  as  one  of  the  main  problems,  while  a  minimum  20%  of  all  other  types  of 
organisations  considered  this  a  problem.  Recruitment  was  also  seen  as  an  obstacle  by  all 
organisation types, but the local authorities (100%) experienced these types of problems the most. 
Respondents  from  NGOs  most  commonly  considered  recruitment  as  one  of  the  main  problems 
together  with  access  to  social  benefits.  44%  of  respondents  from  private  companies  and  40%  of 
private  companies  considered  the  same.  In  fact,  with  the  exception  of  local  authorities,  access  to 
social benefits was seen as an important problem regardless of the organisation type. Finally, 22% 
of the employer organisations and 20% of the private companies felt that EU citizens do not face 
problems. 9% of the national authorities and 8% of NGO shared this view s, but none of the labour 
unions, regional and local authorities agreed with it. Almost half of the NGOs saw other aspects as 
the main problems. These included lack of sufficient information concerning the workers' rights and 
differences  between  countries  as  regards  e.g.  taxes,  health  insurance  costs,  healthcare  fees, 
provisions  etc,  lack  of  resources  to  personal  consultation  for  border  workers,  lack  of  legal 
requirements in particular for posted  workers, lack of information about vacancies, ineligibility for 
social and health insurances and unregulated working conditions. 

EN 

98 

   EN 

 
 
Table  4:  Main  problems  that  EU  workers  face  by  organisation  type  (%  of  the  total  respondents  in  each 
organisation category) 

Type 
problem 

of 

Employers 

Labour 
union   NGO  National  Regional  

Local   Private   Other 

Recruitment
122

Working 
conditions

123

44% 

55% 54%

18%

33% 

100% 38%

55%

Access 
training 

to 

22% 

40% 46%

Membership 
of  the  trade 
unions 

0% 

25%

8%

9%

9%

60% 100
% 

80% 100
% 

40% 

33%

20% 

44%

0%

0% 

20% 

0%

0%

0% 

0% 

0%

Access 
housing 

to 

11% 

50% 38%

36%

20%

0% 

20% 

44%

to 
Access 
education  for 
the  worker's 
children

124

0% 

15% 23%

0%

20%

0% 

20% 

11%

to 

44% 

40% 54%

45%

40%

0% 

40% 

44%

Access 
social 
benefits

125

Access to tax 
advantages
126

Other 
aspects 

EU 
citizens 
do  not  face 
problems 

22% 

25% 23%

18%

0%

0% 

0% 

22%

33% 

25% 46%

36%

0%

0% 

40% 

33%

22% 

0%

8%

9%

0%

0% 

20% 

0%

of 
% 
answers 

all 

10% 

35% 21%

12%

5% 2% 

5% 

10%

As presented in Table 5, the majority of the recurrent cases the organisations mentioned most dealt 
with  working  conditions.  These  include  wage  dumping  and  precarious  working  conditions  without 
following  collective  agreements  and  legal  minimum  requirements.  According  to  the  respondents, 
migrant  workers  that  come  from  Eastern  European  countries  in  particular  received  lower  salary 
compared  to  nationals  for  the  same  positions,  and  also  experienced  more  pressure  to  work 
unofficially  without  contributions  to  the  social  security  by  employers.  Language  problems  were 
mentioned  as  one  reason  why  these  exploitative  working  conditions  existed,  as  workers  were  not 
aware  of  their  rights.  Some  organisations  specifically  mentioned  home  care  workers  and  posted 
workers.  

In  the  case  of  home  care  workers,  the  employees  worked  as  "domestic  helpers  with  additional 
maintenance  tasks,"  resulting  in  a  situation  where  they  provided  basic  care.  In  many  countries, 

122 
123 
124 
125 
126 

e.g. different recruitment criteria 
e.g. different pay, different career development 
in the educational system of the country where he works 
e.g. study grants, transport fare reductions, minimum subsistence payments 
e.g. non deductibility of living expenses incurred abroad, alimony payments or contributions to private 
medical insurance abroad, taxation on gross instead of net income or higher taxation of foreigners in the 
host State 

EN 

99 

   EN 

 
 
  
 
 
  
 
                                                 
these  workers  that  came  from  new  Member  States  were  often  not  offered  a  work  contract  and 
therefore did not receive proper protection or working conditions, nor access to social security and 
training. Respondents stated that due to legal gaps, this undeclared employment was not perceived 
as  an  unlawful  activity  as  domestic  care  work  is  not  considered  as  “regular”  work  with all  related 
workers’ rights.  

Problems  with  the  situation  of  posted  workers  were  mentioned  by  German  and  Swedish  labour 
unions.  For  these  workers,  equal  treatment  regarding  working  conditions  was  only  partially 
guaranteed.  For example, even if posted workers  were guaranteed a minimum salary, deductions 
(e.g. accommodation, transportation, meals, poor performance) often resulted in a low pay. At the 
same  time,  these  workers  needed  to  work  more  hours  per  week.  German  labour  unions  criticised 
the  authorities  in  the  country  for  not  putting  out  enough  effort  to  control  and  prevent  this 
phenomenon. To mention a few more examples regarding working conditions, Dutch labour unions 
mentioned  difficulties  in  appropriate  working  conditions  and  housing  in  the  agriculture  sector  and 
among  Polish  workers.  There  was  also  discrimination  in  pay  for  seafarers  embarked  under  a 
European flag different that of his/her residence. 

Organisations  also  pointed  out  challenges  regarding  access  to  social  benefits.  This  was  often  a 
result  from  situations  where  the  workers  were  not  properly  reported  to  the  authorities  by  their 
employer  and  adequate  contributions  were  not  made.  There  was  also  a  lack  of  information  about 
benefits and schemes that should be followed. Furthermore, there was a risk that migrant workers 
would fall between the social security schemes of different countries, or have too short periods of 
employment to be properly covered by the social security schemes. Organisations also mentioned 
recurrent  cases  in  regards  to  recruitment.  Problems  mentioned  dealt  with  the  recognition  of 
diplomas and experience, which also resulted in differing working conditions. For example, one of 
the  Spanish  employer  organisations  explained  that  because  of  language  problems  it  was  hard  to 
certify  and  recognise  the  foreign  drivers'  licences  and  training  needed  to  work  as  a  professional 
driver. Bulgarians and Romanians encountered discrimination regarding recruitment because work 
permits  were  required.  Problems  regarding  housing  issues  mostly  dealt  with  the  provision  of  bad 
and/or  expensive  housing  by  employers.  Furthermore,  a  lack  of  information  and  knowledge  of 
different  procedures  in  different  countries  were  often  pointed  out,  along  with  the  administrative 
burden  that  working  in  another  Member  State  causes  to  employers  and  employees,  particularly 
frontier  workers  and  independents.  In  addition,  other  challenges  mentioned  dealt  with  access  to 
services of employment offices, lack of information of job offers, lack of language skills and, more 
specifically  in  the  case  of  Denmark,  the  Danish  International  Ship  Register  was  not  open  for 
migrant workers. 

Table 5: Recurrent cases 

Problems 

Recruitment 

Working conditions 

Access to training 

Membership of trade unions 

Access to housing 

Access to education for the workers' children 

Access to social benefits 

Access to tax advantages 

Other 

No. of cases 

9

30

3

0

7

2

11

3

12

Do  you  think  that  the  country  where  your  organisation  is  based  adequately  protects 
workers against discrimination on grounds of nationality? 

EN 

100 

   EN 

 
 
The majority of 61% either agreed or strongly agreed that the country where the organisation was 
based  adequately  protected  workers  against  discrimination  on  the  grounds  of  nationality,  while 
32%  either  disagreed  or  strongly  disagreed.  7%  of  respondents  did  not  have  an  opinion  on  this 
issue. Table 6 below presents the respondents’ answers more in detail. 

Table  6:  Do  you  think  that  the  country  where  your  organisation  is  based  adequately  protects  workers 
against discrimination on grounds of nationality? (n=74) 

Opinion 

No. of respondents 

% of respondents 

I agree strongly 

I agree 

Disagree 

Disagree strongly 

No opinion 

9

36

20

4

5

12%

49%

27%

5%

7%

127

As  seen  in  Figure  16,  in  11  of  the  Member  States,
  all  of  the  organisations  based  in  these 
countries  and  expressing  an  opinion  considered  the  country  to  adequately  protect  its  workers. 
Organisations  specified  that  relevant  provisions  ensuring  equal  rights  existed  in  the  national 
legislation in Austria and Poland. A labour union in Portugal mentioned the promising work of the 
national agency ACIDI, which worked with communities and social partners on immigrant/minority 
issues, as well as provided information and a wide range of services. The Czech national authority 
referred  to  the  labour  inspection  and  labour  office,  which  monitored/controlled  the  observance  of 
non-discrimination legislation regarding the access to employment in the labour market.  

In  six  Member  States  (BG,  CY,  DK,  EL,  FR,  SE),  the  situation  was  the  opposite;  none  of  the 
respondents  based  in  these  countries  and  expressing  their  opinion  considered  the  protection  as 
adequate. However, it should be noted that the number of respondents from these countries was 
very limited. Nevertheless, in Cyprus, a labour union specified that the implementation was failing 
even  though  the  state  provided  adequate  legal  protection  against  discrimination  based  on  ethnic 
origin. A Danish labour union provided an example of the Danish International Ship Register, which 
placed  restrictions  on  non-domiciled  workers.  One  French  labour  union  explained  that  employees 
from  other  countries  encountered  less  favourable  working  conditions  than  nationals.  A  Swedish 
labour union referred to the situation where trade unions did not always have a representative of 
the foreign company to negotiate working conditions with or practices in public procurement. This 
led to the possibility of dumping through the search for lower costs without taking into account the 
social  aspects.  In  addition,  a  labour  union  that  strongly  disagreed  with  the  fact  that  Italy 
adequately  protects  workers  against  discrimination  stated  that  the  Italian  government  does  not 
provide  enough  information  to  immigrants  regarding  their  rights.  Rather,  immigrants  were 
considered more as a problem for national security than as EU citizens. 

When looking at the situation in the Member States with a minimum of five respondents, it can be 
noted that the opinions are more diverse, with the exception of Poland
 out 
of  ten  respondents  agreed,  while  five  disagreed.  German  organisations  referred  to  the  anti-
discrimination  legislation  in  the  country,  more  specifically  to  the  General  Equal  Treatment  Act, 
while  labour  unions  criticised  the  implementation  of  the  legislation  and  an  NGO  called  for  further 
measures  at  the  European  level,  such  as  introducing  social  progress  clauses  in  the  European 
Treaties and improving information practices. In Spain, where four out of six
 respondents either 
agreed  or  strongly  agreed,  organisations  also  referred  to  the  regulatory  framework  protecting 
organisations,  but  the  implementation  was  similarly  criticised  because  of  lack  of  adequate 
mechanisms for compliance. Discrimination on the grounds of nationality or race was sanctioned in 

. In Germany, four

130

128

129

127 
128 
129 
130 

AT, CZ, EE, FI, HU, LV, MT, PL, PT, SI, SK. 
All the respondents represent public authorities. 
Agree: employers' organisations, NGOs; disagree: labour unions, a NGO, a private company. 
Strongly agree: a national authority; agree: employers' organisations, a labour union; disagree: a labour 
union, a NGO. 

EN 

101 

   EN 

 
 
                                                 
only a few cases. It was also reported that many services assisting migrants have been removed or 
their budgets reduced in Spain, meaning that charity organisations had to step in to provide these 
services.  In  the  Netherlands,  where  three  out  of  five
  respondents  either  agreed  or  strongly 
agreed, a labour union that disagreed specified that despite the possibility to complain to the Equal 
Opportunities  Commission  or  start  court  proceedings,  migrant  workers  often  found  themselves  in 
vulnerable  positions  due  to  language  differences,  temporary  labour  contracts  and  other  issues. 
These workers did not even start proceedings before the Commission because they were afraid of 
losing their jobs. 

131

Figure  16:  Answers  by  Member  State:  Do  you  think  that  the  country  where  your  organisation  is  based 
adequately protects workers against discrimination on grounds of nationality? (n=73) 

Figure  17  allows  a  closer  look  at  whether  different  types  of  organisations  share  the  same  views 
regardless  of  the  country  they  are  based  in.  It  seems  to  be  clear  that  private  companies,  labour 
unions  and  NGOs  were  the  most  negative  towards  their  countries'  ability  to  protect  migrant 
workers. More than 70% of other types of organisations considered the protection adequate, while 
all of the employer organisations and regional and local authorities expressing their opinion shared 
this view. 

Figure  17:  By  organisation  type:  Do  you  think  that  the  country  your  organisation  is  based  adequately 
protects workers against discrimination on grounds of nationality? (n=74) 

Do  you  think  workers  should  be  better  protected  from  discrimination  on  grounds  of 
nationality when working in a different country of the European Union? 

As Table 7 presents, 80% of the respondents either agreed or strongly agreed that workers should 
be  better  protected  from  discrimination  on  grounds  of  nationality  when  working  in  a  different 

131 

Strongly agree: an employers' organisation; agree: a labour union; disagree: a labour union, a NGO. 

EN 

102 

   EN 

 
 
 
                                                 
country  of  the  European  Union;  38%  of  respondents  strongly  agreed.  Only  13%  disagreed  or 
strongly disagreed.  

Table  7:  Do  you  think  workers  should  be  better  protected  from  discrimination  on  grounds  of  nationality 
when working in a different country of European Union? (n=73) 

Opinion 

No. of respondents 

% of respondents 

I agree strongly 

I agree 

Disagree 

Disagree strongly 

No opinion 

28

31

7

2

5

38%

42%

10%

3%

7%

Figure 18 illustrates the situation according to the country the respondents were based. There are 
13 Member States
 where all organisations either agreed or strongly agreed that workers should 
be better protected. Austria is the only case where  the majority of the respondents did not share 
this view. 

132

Figure  18:  By  Member  State:  Do  you  think  workers  should  be  better  protected  from  discrimination  on 
grounds of nationality when working in a different country of European Union? (n=72) 

As  Figure  19  illustrates,  regardless  of  the  organisation  type,  the  majority  of  respondents  either 
agreed  or  strongly  agreed  that  workers  should  be  better  protected  from  discrimination  on  the 
grounds of nationality when working in a different Member State. All local and regional authorities 
agreed,  and  70%  of  labour  unions  and  80%  of  private  companies  strongly  agreed.  Employer 
organisations (55%) agreed the least compared to other types of organisations. 

Figure 19:  By  organisation type: Do  you think workers  should be  better protected  from discrimination on 
grounds of nationality when working in a different country of European Union? (n=73) 

132 

BE, BG, CY, CZ, DK, EE, EL, MT, PL, PT, SK, SL, UK 

EN 

103 

   EN 

 
 
 
                                                 
How do you think that it could be best achieved that workers could be better protected 
from  discrimination  on  grounds  of  nationality  when  working  in  a  different  country  of 
European Union?133 

As  Figure  20  illustrates,  50%  of  respondents  indicated  adoption  of  EU  legislation  that  reinforces 
workers’ rights as the most important measure to better protect workers from discrimination on the 
grounds of nationality when working in a different country of the EU. However, this question clearly 
divides  opinions,  as  it  was  also  rated  as  the  least  important  option  by  18%  of  the  respondents. 
Information campaigns enjoyed the second strongest support, while 35% of the respondents chose 
it as the most important option. All of the other options (non-legal actions, e.g. exchange of good 
practices between EU countries, enterprises, labour unions; setting up of contact points in national 
administration  and  supporting  actions  by  organisations  with  an  interest  in  fighting  against 
discrimination on grounds of nationality) were ranked highest by roughly 25% of the respondents. 
Non-legal actions and the establishment of a contact point were indicated as the second important 
action by approximately one-third of the respondents. 

Other measures included EU level actions, such as establishing a clearing house to clarify the social 
status  of  EU  citizens,  and  approving  European  regulations  that  ensure  equality  in  the  country  of 
work,  regardless  of  the  country  where  the  recruitment  took  place  and  whether  the  worker  was 
temporarily displaced. At the same time, better implementation of existing legislation was seen as 
important.  It  was  also  stated  that  it  was  crucial  for  migrants  to  receive  clear  information  about 
their  rights,  free  legal  advice  and  other  support.  Trade  unions  should  also  have  access  to  work 
places and enhanced contacts between countries. 

Figure  20:  How  do  you  think  that  it  could  be  best  achieved  that  workers  could  be  better  protected  from 
discrimination on grounds of nationality when working in a different country of European Union? (1=most 
important, 6=least important) (n=74) 

133 

The  respondents  were  asked  to,  in  order  of  importance,  rank  the  different  options  to  better  protect 
workers from discrimination on the grounds of nationality. Only 27 % of the respondents listed in order 
of  importance  the  different  options,  while  the  rest  placed  several  options  in  the  same  place. 
Nevertheless, all the answers are analysed and therefore answers rated from 1 to 6 do not equal to 100% 
in the figure 22. 

EN 

104 

   EN 

 
 
                                                 
The  following  five  figures  (Figure  21,  Figure  22,  Figure  23,  Figure  24,  and  Figure  25)  look  at  the 
popularity of different options per organisation type. Figure 21 shows that adoption of EU legislation 
reinforcing  workers  rights  was  stated  as  the  most  important  action  among  all  of  the  respondents 
from  private  companies,  regional  and  local  authorities.  This  view  was  shared  by  the  majority  of 
respondents  from  labour  unions  and  NGOs.  Among  national  authorities,  40%  of  the  respondents 
considered it the most important, while 20% claimed it to be the least important action. It is clear 
that  compared  to  other  types  of  organisations,  the  respondents  from  employer  organisations 
considered the action to be less important. In fact, 36% of employer organisations considered the 
action  to  be  the  least  important,  while  none  of  the  organisations  considered  it  to  be  the  most 
important. 

Figure  21:  Adoption  of  EU  legislation  reinforcing  their  rights  (1=most  important,  6=least  important) 
(n=74) 

Information campaigns received fairly even support regardless  of the organisation type. It can be 
seen  that  the  respondents  from  employer  organisations  as  a  whole  considered  information 
campaigns more important than adoption of EU legislation.  

Figure 22: Information campaigns (1=most important, 6=least important) (n=74) 

EN 

105 

   EN 

 
 
 
Similarly  setting  up  contact  points  in national  administration was  considered  important  regardless 
of the organisation type. However, 27% of employer organisations considered this action the least 
important.  Compared  to  information  campaigns,  NGOs  and  national  authorities  considered  setting 
up contact points as more important. 

Figure 23: Setting up of contact points in  national  administration (1=most important, 6=least important) 
(n=74) 

Non-legal  actions  were  supported  most  by  respondents  from  local  authorities.  Overall,  employer 
organisations,  NGOs,  national  and  regional  authorities  and  respondents  from  private  companies 
considered  non-legal  actions  more  important  than  setting  up  contact  points.  Respondents  from 
NGOs  and  regional  authorities  also  clearly  considered  these  actions  as  more  important  than 
information campaigns. 

Figure  24:  Non-legal  actions  (e.g.  exchange  of  good  practices  between  EU  countries,  enterprises,  labour 
unions (1=most important, 6=least important) (n=74) 

EN 

106 

   EN 

 
 
 
Finally, the support of actions by organisations with an interest in fighting against discrimination on 
grounds of nationality was considered among the respondents as the most important regardless of 
the  type  of  organisation.  The  support  was  strongest  among  private  companies,  labour  unions, 
NGOs and regional authorities. 

Figure  25:  Supporting  actions  by  organisations  with  an  interest  in  fighting  against  discrimination  on 
grounds of nationality (n=74) 

EN 

107 

   EN 

 
 
 
ANNEX 8 - RESOURCES OF EXISTING SUPPORT AND EQUALITY BODIES

134 

Member 
State 

National body  

Total N° of 
employees 
(full-time 
equivalent) 

Total 
annual 
budget 

22.5 

N/A 

Total number 
of cases in 
2011 (all 
grounds of 
discrimination) 
2,505 

Part of activity 
devoted to 
discrimination 
based on 
nationality 
N/A 

100,9  

8.9 M€  

3718 “racial”  

5 %  

Austria 

Belgium 

Bulgaria 

Cyprus 

Czech 
Republic 
Germany 

Denmark 

Estonia 

Greece 
Spain 

Finland 

France 
Hungary 

Ombudsman for 
Equal Treatment 
Centre for Equal 
Opportunities and 
Opposition to 
Racism 
Commission for 
Protection against 
Discrimination 
Office of the 
Commissioner for 
Administration 
(Ombudsman) 

Public Defender of 
Rights 
Federal anti-
discrimination 
agency 
Board of Equal 
Treatment 

2  

The 
Gender 
Equality and 
Equal 
Treatment 
Commissioner 
Obudsman 
Council for the 
promotion of 
equal treatment 
Ombudsman for 
Minorities 
Defender of Rights   220 
Equal Treatment 

190 
1 

11  

22 

1.2 M€ 

362 

2.5% 

77 

9 

0.5 M€ 

144 
(complaints 
received by the 
Equality body 
alone - which 
operates 
within the 
Ombudsman's 
office) 
271 

26% 

N/A 

N/A 

23.5% (ethinc 
+ national 
origin) 
4% 

113  

3.8 M€ 

25 

4 

2.6 M€ 

714  

0.6 M€  

190  

0.06 M€ 

47  

N/A  
0.3 M€ 

N/A  
N/A 

0.8 M€ 

830 

39,5 M€ 
0.4 M€ 

8,183 
40 

N/A 
N/A 

N/A 

2.5% 
N/A 

134 

Information from reports on Equality Bodies gathered by the legal experts' networks on gender equality 
and antidiscrimination. 

EN 

108 

   EN 

 
 
                                                 
33  

18 

12 

2 

39 

15 

70 

265 
40 

90 

85 

1 

Ireland 

Italy 

Lithuania 

Luxembourg 

Latvia 

Malta 

Netherlands 

Poland 
Portugal 

Romania 

Sweden 

Slovenia 

Slovakia 

United 
Kingdom 

Authority 
Equality Authority  

National Office 
against Racial 
Discrimination 
Office of the Equal 
Opportunities 
Ombudsperson 
Centre for Equal 
Treatment 
National Equality 
Body 
National 
Commission 
for the 
Promotion of 
Equality 
Equal Treatment 
Commission 
Ombudsman 
ACIDI – Alto 
Comissariad 
o para a 
Imigração e 
Diálogo 
Intercultural 
National Council 
for Combating 
Discrimination 
Equality 
Ombudsman 
Advocate of the 
Principle of 
Equality 
Equality 
Body 
Equality and 
Human Rights 
Commission 

3 M€ 

60 

2 M€ 

ethnic origin: 
878  

N/A 

N/A  

0.4 M€  

170  

9.5% 

0.08 M€  

118 

1 M€ 

0.25 M€ 

43 

16 

0.6 M€ 

6,074 

8,25 M€ 
12,4 M€ 

1,033  
N/A 

N/A 

2.5% 

N/A 

4% 

4 %  
N/A 

0.8 M€ 

465 

7,09% 

10.6 M€ 

2,353  

0.03 M€ 

33 

N/A 

N/A 

N/A 

N/A 

13  

0.5 M€ 

N/A 

450 (2010) 
180 (2015) 

64.5 M€ 

66 strategic 
legal actions 
and 
interventions 

EN 

109 

   EN