CELEX: 52013PC0236
Language: en
Date: 2013-04-26
Title: Proposal for a 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

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		52013PC0236
		
			Proposal for a 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/2013/0236 final - 2013/0124 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
General context
Freedom of movement
for workers is one of the four fundamental freedoms on which the Single Market
is based. It is one of the core values of the European Union and a fundamental
element of EU citizenship. Article 45 TFEU enshrines the right of EU citizens
to move to another Member State for work purposes. It specifically includes the
right not to be discriminated against on the grounds of nationality as regards
access to employment, remuneration and other conditions of work. It also includes
the removal of unjustified obstacles to the freedom of
movement of workers within the European Union. The Charter of Fundamental
Rights of the European Union confirms in Article 15(2) that every citizen of
the Union has the freedom to seek employment, to work, to exercise the right of
establishment and to provide services in any Member State.
Regulation (EU) No
492/2011[1] details the rights derived from the freedom of movement of workers,
and defines the specific areas where discrimination on the grounds of
nationality is prohibited, in particular as regards[2]:
–              
access to employment
–              
working conditions
–              
social and tax advantages 
–              
access to training
–              
membership of trade unions 
–              
housing
–              
access to education for children 
Article 45 TFEU
and Regulation (EU) No 492/2011 are directly applicable in all Member States.
This means that there is no need to adopt national legislation to transpose
those provisions. Any national authority at any level and any employer, whether
public or private, must apply and respect the rights stemming from those
provisions. 
In spite of this, EU
citizens who want to move or who actually move from one Member State to another
for work purposes continue to face problems in exercising their rights. The
difficulties they face go some way to explaining why geographical mobility
between EU Member States has remained at a relatively low level: according to
the EU-Labour Force Survey, in 2011, only 3.1% of the working-age European
citizens (15-64) lived in an EU Member State other than their own[3]. 
A Eurobarometer survey
in 2009 showed that while 60% of European citizens considered free movement of
workers to be a good thing for European integration, only 48% thought it was positive
for individuals. Moreover, according to the results of a more recent
Eurobarometer (September 2011)[4], 15% of European citizens would not consider working in another
Member State because they feel there are too many obstacles. 
Similarly, the
European Parliament's report on 'Problems and prospects concerning European
citizenship' of 20 March 2009 detailed persisting obstacles to the cross-border
enjoyment of rights. It called on the Commission to produce a list of obstacles
to the exercise of EU citizens' rights, based on the results of a public consultation, and make specific proposals
to address those obstacles. 
More recently the
European Parliament by its Resolution on promoting workers' mobility
within the European Union of 25 October 2011 calls on the Commission and Member
States to take measures in order to "to guarantee…the correct
implementation of the existing legislation on non-discrimination, to take
practical measures to enforce the principle of equal treatment of mobile
workers…"[5]
In
its Conclusions of EPSCO Council of March 2009 on Professional and geographical
mobility of the workforce and the free movement of workers within the European
Union, the Council invited the Commission and the Member States 'to promote
measures supporting labour and social mobility as well as the equal treatment
and non-discrimination of migrant workers in line with the acquis' and to 'further
develop appropriate strategies and tools for the identification and analysis of
barriers to geographical and professional worker mobility and to effectively
contribute to the removal of existing barriers, in accordance with the Treaties'.
The report delivered by Mr Monti on 9 May
2010 (‘A new Strategy for the Single Market’) underlines the fact that the overall
freedom of movement of workers is a success from a legal point of view, but it
is the least used of the four freedoms of the Single Market. The report points
out that the majority of Europeans see too many obstacles to working elsewhere
in the EU and a number of legal and administrative barriers still remain in the
field of free movement of workers. According to the report, obstacles in this
area are the hardest to overcome. 
In July 2010, in its Communication on
"Reaffirming the free movement of workers: rights
and major developments"[6]
the Commission pointed out that it will explore ways of tackling the new needs
and challenges (in particular in the light of new patterns of mobility) facing
EU migrant workers and their family members, and in the context of the new
strategy for the single market will consider 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.
This objective was reinforced in the 2010
EU Citizenship Report "Dismantling the obstacles to EU citizens
rights"[7]
of 27 October 2010. The Commission identified the divergent and incorrect
application of EU law on the right to free movement as one of the main
obstacles that EU citizens are confronted with in the effective exercise of
their rights under EU law. Accordingly, the Commission announced its intention
to take action to 'facilitate free movement of EU citizens and their
third-country national family members by enforcing EU rules strictly, including
on non-discrimination, by promoting good practices and increased knowledge or
EU rules on the ground and by stepping up the dissemination of information to
EU citizens about their free movement rights'[8].

In its Employment package of 18 April 2012
(Communication from the Commission "Towards a job-rich recovery")[9], the Commission announced its
intention to "present a legislative proposal (information and advice) in
order to support mobile workers in the exercise of rights derived from the
Treaty and Regulation 492/2011 on freedom of movement for workers within the
Union".
President Barroso (Political guidelines for
the 2010-2014 Commission) has also underlined the gap between theory and
practice and has called for the principle of free movement and equal treatment
to become a reality in peoples’ everyday lives. In his State of the Union address
on 12 September 2012, President Barroso underlined the need to create a
European labour market, and make it as easy for people to work in another
country as it is at home[10].
The gap between the rights that EU citizens have in theory and what
happens in practice has also been underlined in several reports from
institutions and, increasingly, the European Union is being called upon to act
in this regard[11].
2013 has been designated as the European Year of Citizens[12]. 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.
Over the
years, the Commission has received a lot of complaints from citizens who want
to move, or who have actually moved to another EU country for work purposes,
and whose rights are not respected. Citizens feel unprotected in the host
Member State and unable to overcome the obstacles they face. 
The Problem
There are many
different examples of obstacles and problems: 
(a) Public
authorities not complying with EU law (non-conforming legislation or incorrect application) and the effect on EU migrant workers
Problems with compliance of
national legislation and general practices still persist in Member States and
continue to be reported to the Commission. These include:
–              
different conditions applied for recruitment of
EU nationals;
–              
nationality conditions for access to posts which
are not covered by the exception in Article 45(4) TFEU;
–              
introduction of nationality quotas for EU
citizens (e.g. in the field of sport at professional level);
–              
different working conditions for EU nationals (remuneration,
career prospects, grade, etc.); 
–              
access to social advantages made subject to
conditions which are more easily met by nationals than by EU citizens (e.g. a
residence condition);
–              
professional qualifications and experience acquired
in other Member States are not taken into account or they are taken into
account in a different way than those obtained in the host Member State for the
purpose of access to employment (e.g. additional points are awarded to the
latter);
–              
residence condition required by national
legislations for access to study grants for EU migrant workers and members of
their families despite well-established case law of the CJ in this area; 
–              
discrimination against frontier workers.
(b) Employers
and legal advisors not complying with EU law 
Information
collected by experts and by the Commission[13]
suggests that there is a recurrent problem with public and private employers' awareness
of EU rules, regardless of whether the legislation at national level is
compliant or not. Being unaware of the rules and lack of understanding seem to
be the main reasons for this problem, especially when it comes to private
employers (e.g. only residents for a certain period can apply for a job
vacancy, no recognition of previous professional experience or professional
qualifications acquired in another Member State, excessive language requirements
etc.).
Legal advisors are also
not always aware or familiar with Union law on free movement of workers.
(c) EU migrant workers not having access to
information or the means to ensure their rights
In several surveys[14], citizens have mentioned that
they do not know where to turn to when faced with problems concerning their EU
rights. There is also evidence that migrants find it difficult to access the protection
available to them, for example, they are not aware of national procedures and systems,
they lack the linguistic ability to access services or the
cost of legal advice and assistance is too high. 
The problems
identified affect EU citizens who move to another Member State for employment
purposes and come back to their Member State of origin in order to work. 
Objectives
In order to tackle
these problems specific objectives have been identified:
–                        
lessening discrimination against EU migrant workers
on the grounds of nationality;
–                        
closing the gap between EU migrant workers'
rights on paper and their exercise in practice by facilitating the correct
implementation of existing legislation; 
–                        
reducing the incidence of unfair practices
against EU migrant workers; 
–                        
and empowering EU migrant workers to ensure their
rights are respected.
2.           RESULTS OF CONSULTATION WITH INTERESTED
PARTIES AND OF IMPACT ASSESSMENT
2.1.        Consultation with
interested parties
(a) Network of experts on free movement
of workers
The
network of legal experts in the field of free movement of workers reports annually
on the legal situation pertaining in the European Union[15]. 
The first report[16], finalised in January 2011, focused on the enforceability of the right
to equal treatment on the basis of nationality as regards EU migrant workers and
on the existing legal framework in each Member State. The report came to the
conclusion that this right is rarely given the same level of protection and
guarantees as the right to equal treatment on other grounds (such as race, age
and sex). EU migrant workers are still perceived in most of the EU countries as
holding a status closer to that of third-country national workers than to that
of national workers. Many EU migrant workers facing discrimination based on
their nationality have to rely on a generous interpretation of national law adopted
to implement the EU equality Directives combating discrimination on other
grounds. 
The second report, submitted in October
2011, presented an overview of the main problems surrounding application of the
rules on free movement of workers identified in each Member State. There are
some problems, apparently of a systemic nature in some Member States, which
simply constitute unlawful discrimination. Most of the problems stem from indirect
discrimination or unjustified restrictions on the exercise of workers' right to
free movement. For example, residence criteria governing eligibility for certain
social and tax advantages, excessive language requirements, or Member States failing
to take into account years worked in a similar post in other EU Member States
for the purpose of calculating a public-sector employee’s seniority and
associated advantages.
(b) Discussion within the Advisory Committee on free movement of
workers 
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 a series of meetings of the Advisory Committee on Free Movement
of Workers between October 2010 and October 2012. The members of the Advisory
committee, made up of representatives of Member States and Social Partners
represented at European and national level, were also asked to reply to a
questionnaire issued by the Commission. The questionnaire was designed to
identify what action is being taken at national level to inform, assist,
support and protect EU workers in relation to the implementation of Regulation (EU)
No 492/2011.
The members of
the Committee acknowledged the importance of the real and effective application
of existing rights. Suggested responses to this need ranged from awareness raising
activities to stronger enforcement of the rules and better access to
information and support for EU migrant workers. During the meeting of the
Advisory Committee on free movement of workers of 30th October 2012,
Social partners, both ETUC and Business Europe,
expressed broadly favourable positions to the proposal of a Directive. 
(c) Public consultation
The Commission carried out a public consultation between June and August
2011. Citizens, national authorities, labour unions, employers’ organisations,
and associations (NGOs, associations of independent professionals, etc.) gave
their views on the main problems workers face when exercising their right to free
movement, on the current level of workers' protection 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 were from organisations, including national authorities. Among the
responses from 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. Adoption of EU
legislation was the most important course of action suggested by trade unions,
NGOs, private companies, regional and local authorities and citizens. National
authorities were divided. Employers clearly indicated that awareness-raising is
very important. Setting up contact points or structures in the Member States
was seen as an important measure by the majority of respondents. Exchanges of
practice between EU countries was also considered an important tool, while
non-profit organisations, trade unions, private companies and regional
authorities[17]saw
supporting organisations as important.
2.2.        Impact assessment
In line with its policy on better regulation, the Commission
conducted an impact assessment of policy alternatives, based on an external
study[18],
which concluded in April 2012.[19] 
The different policy alternatives contain a range of options
representing different degrees of EU intervention: maintaining the status quo,
effecting change without regulation, or regulating. With respect to the latter,
the options provide differentiated scenarios ranging from soft intervention (non-binding
legal instrument such as a Recommendation) to maximum intervention in the form
of a binding legal instrument such as a Directive.
All these options were analysed against the general objectives. 
The Impact Assessment demonstrated that a binding legislative
initiative would impact tangibly on the exercise of free movement rights. A binding
legal instrument imposing obligations on Member States to adopt appropriate
measures to ensure that there are effective mechanisms for the dissemination of
information and advice to citizens is an effective and efficient way of achieving
the stated objectives.
The preferred option is a Directive combined
with other initiatives, such as common guidelines on specific subjects to be
adopted by the Technical Committee[20]
on free movement of workers. A Common Guidance document would address the specific
issue of the application of EU law in the field of the free movement of workers.

A Directive introducing measures intended to
support EU migrant workers confronted with problems of free movement would aim
to raise national authorities' awareness of the issue and increase their action
against discrimination on the grounds of nationality. Through increased visibility
of the issue, citizens would become more informed about their rights and public
and private sector employers and other stakeholders' (NGOs, Social Partners…)
would also become more aware. Moreover, without creating additional burdens on
employers, a Directive would significantly contribute to better understanding and
enforcement of EU law by specifically requiring Member States to ensure that stakeholders
are better informed. Additionally, by providing a specific means of redress
against any breach of rights under Article 45 TFEU and allowing third parties
to intervene on behalf of EU migrant workers, it will become easier for
citizens to exercise their rights and receive support in doing so. 
The draft impact assessment was endorsed by
the Impact Assessment Board (‘IAB’) in July 2012. The opinion of the IAB as
well as the final Impact Assessment and its executive summary are published together
with this proposal.
3.           LEGAL ELEMENTS OF THE PROPOSAL
3.1.        General context — summary
of the proposed action
The present proposal for a Directive aims to improve and reinforce
the way in which Article 45 TFEU and Regulation (EU) No 492/2011 are applied in
practice across the European Union by establishing a general common framework
of appropriate provisions and measures for facilitating a better and more
uniform application of rights conferred by EU law on workers and members of
their families exercising their right to free movement. 
The proposal for a Directive introduces, in particular, legal
obligations in order to:
- guarantee EU migrant workers an appropriate
means of redress at national level. Any EU worker who believes that he/she has been
the victim of discrimination on the grounds of nationality should be able to
make use of appropriate administrative and/or judicial procedures to challenge
the discriminatory behaviour;
- further protect workers by ensuring that
associations, organisations or other legal entities 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
where there has been a violation of their rights;
- set up structures or bodies at a national
level which will promote the exercise of the right to free movement by providing
information and supporting and assisting EU migrant workers who suffer from
nationality based -discrimination;
- raise awareness by providing employers,
workers, and any other interested parties with easily accessible relevant
information;
- promote dialogue with appropriate
non-governmental organisations and the social partners.
3.2.        Legal basis
This proposal is based on Article 46 TFEU, the
same legal base as Regulation (EU) No 492/2011, which allows for the adoption
of Regulations or Directives under the ordinary legislative procedure.
3.3.        Subsidiarity and
proportionality principles
The problems identified with respect to the
application and enforcement of EU Law on the free movement of workers, and in
particular of Regulation (EU) No 492/2011, are linked to the objectives set out
in Article 3(3) TEU, under which the European Union established an internal
market based on a highly competitive social market economy, aimed at full
employment and social progress, and in Articles 45 (freedom of movement and non-
discrimination on the grounds of nationality for EU workers) and 18 TFEU (non-
discrimination on the grounds of nationality for EU citizens).
The applicable EU rules need to be applied
appropriately and effectively. Differences and disparities in the way Regulation
(EU) No 492/2011 is applied and enforced in the different Member States are detrimental
to the proper functioning of free movement as a fundamental freedom. There is
evidence to suggest it is very difficult to create the required level playing
field for workers exercising their right to free movement throughout the EU. Under these circumstances, the necessary legal
clarity and certainty can only be achieved at EU level.
The objectives of the proposal cannot be
sufficiently achieved by Member States and action at EU level is therefore
required.
In line with the principle of
proportionality, this Directive does not go beyond what is necessary in order
to achieve the objectives. In order to improve the application and enforcement
of Regulation (EU) No 492/2011 in practice, it proposes preventive measures,
such as the guarantee of appropriate means of redress and the provision of information
support and advice in accordance with national traditions and practices. 
Bearing in mind the nature of the proposed
measures, it will give Members States the freedom to choose the implementing
measures best suited to their national judicial systems
and procedures.
3.4.        Detailed explanation of
the proposal
3.4.1.     CHAPTER I GENERAL
PROVISIONS
3.4.1.1.  Article 1 - Subject matter
Article 45 TFEU is a provision of EU law
which is directly applicable in the national judicial order of Member States
and which directly confers on European citizens the right to move to another Member
State for work purposes and to accept offers of employment,
to work there without needing a work permit, to reside there for that purpose
and to stay there even after employment has finished. It also confers the right
to enjoy equal treatment with nationals as regards access to employment,
remuneration and other conditions of work and employment. Thus it implies the
abolition of any discrimination (direct or indirect) based on nationality in
the exercise of these rights as well as of any unjustified obstacle which
impedes the exercise of the right to free movement[21].
Regulation (EU) No 492/2011 is also a legal instrument which by its nature is directly
applicable and Member States do not have to take implementing measures in order
for their citizens to be able to rely on the rights conferred by that
Regulation.
The rights conferred by that Regulation
on individuals, which will be easier to enforce under the present proposal, are
those contained in Chapter I “Employment, Equal treatment and Workers’ families,
in Articles 1 to 10. They concern in particular access to employment (Section 1,
Eligibility to employment, Articles 1 to 6), equal treatment in relation to
employment and working conditions (Section 2, Employment and equality of
treatment, Articles 7 to 9) and the family members of the worker (Section 3, Workers’
families, article 10).
The present proposal for a Directive does
not concern Chapter II of Regulation (EU) No 492/2011, Clearance of
vacancies and applications for employment (Articles 11 to 20), Chapter III,
Committees for ensuring close cooperation between the Member States in
matters concerning the freedom of movement of workers and their employment (Articles
20 to 34) or Chapter IV, Final provisions (Articles 35 to 42).
3.4.1.2.  Article 2-Scope
The proposal does not modify the scope of
application of the Regulation (EU) No 492/2011. It only applies in cases of
discrimination on the grounds of nationality in relation to the matters covered
by that Regulation, by introducing the provisions of protection, information
and support, in accordance with Articles 3 to 7 of the present proposal for a
Directive. It underpins the guarantee of equal treatment and reinforces
remedies in cases of
unjustified obstacles in relation to eligibility and access to employment for
workers exercising their right to free movement within the European Union.
In this context the proposal for a
Directive covers the following matters:
- access to employment;
-
conditions of employment and work in particular as regards remuneration and
dismissal
-
access to social and tax advantages;
-
membership of trade unions;
-
access to training;
-
access to housing;
- access to
education for workers' children.
3.4.2.     CHAPTER II - ENFORCEMENT
3.4.2.1.  Article 3- Defence of rights
- Means of redress - Time limits
This Article imposes a legal obligation on Member States to
provide EU migrant workers with appropriate means of redress at national level.
It also relates to the enforcement and defence of rights, which in itself
concerns a fundamental right. The Charter of Fundamental Rights of the European
Union confirms the right to an effective remedy for everyone whose rights and
freedoms guaranteed by the law of the European Union are violated or not
respected. The proposal covers both judicial and extra-judicial means of
redress, including alternative dispute settlement mechanisms such as conciliation
and mediation. Ombudsmen and equality bodies or other similar structures may
also provide an alternative to the general courts. In accordance with Article
47 of the Charter of Fundamental Rights of the European Union this Article
provides that, in case where Member States only provide for administrative
procedures, they shall ensure that any administrative decision may be
challenged before a tribunal.
In conformity with the case-law of the CJ[22], paragraph 2 of this Article
specifies that the previous paragraph is without prejudice to national rules
relating to time limits for bringing actions as regards the principle of equal
treatment, provided that these time limits are such
that they cannot be regarded as capable of rendering virtually impossible or
excessively difficult the exercise of rights conferred by Union law on free
movement of workers.
3.4.2.2.  Article 4 - Action of
associations, organisations or other legal entities
This Article introduces an obligation for Member States to ensure that
associations, organisations or legal entities (such as trade unions, NGOs or
other organisations) may engage in any administrative or judicial procedure on
behalf or in support of EU migrant workers in the event of violations of their
rights under either the Directive or under Regulation (EU) No 492/2011. It
would be left to Member States' discretion to define the way this provision
should be implemented in practice, according to the national judicial systems
and procedures.
Associations,
organisations or other legal entities can play a significant role in the
defence of rights on behalf of or in support of a worker and members of his/her
family[23].
The assistance could be different from one Member State to another according to
their judicial system, procedures, traditions and practices (e.g. the trade unions
could intervene, or bear the costs or assisting victims of discrimination).
Mirroring
Article 3 the second paragraph of Article 4 specifies that the first paragraph is without prejudice to national rules relating
to time limits for bringing actions.
3.4.3.     CHAPTER III - PROMOTION OF
EQUAL TREATMENT - CONTACT POINTS, STRUCTURES OR BODIES - DIALOGUE 
3.4.3.1.  Article 5 – Contact
points, structures or bodies.
This Article provides for structures on information, promotion and
support or for bodies to be established at national level to support EU migrant
workers and promote, analyse and monitor the rights conferred on them and the
members of their families by EU law. These functions may, however, also be
exercised by existing bodies already established by Member States to fight
discrimination on other grounds in the context of the implementation of EU
legislation, or agencies with responsibility at national level for the defence
of human rights or the safeguard of individuals' rights. In this case Member
State must ensure allocation of sufficient resources to the existing body for
the performance of additional tasks. To this end the training of experts could
be eligible under the European Social Fund.
The tasks of these structures or bodies should include:
(a)                   
Providing information to all relevant
stakeholders and increasing support for EU migrant workers; providing advice
and assistance to alleged victims of discrimination pursuing their complaints,
without prejudice to the rights of the legal entities referred to in Article 4.
Whilst in some countries equality bodies established under EU Directives
fighting discrimination on other grounds have legal standing and can bring a
case to court, in others, they can only provide assistance to the claimant, or
provide observations to the court.
(b)                   
Conducting independent surveys concerning
discrimination on the basis of nationality;
(c)                   
Publishing independent reports and making
recommendations in relation to equality of treatment and the fight against nationality
based discrimination.
(d)                   
Publishing information on any issue relating to
the application at national level of EU rules on free movement of workers.
It would be left to each Member State to decide whether creating a
completely new structure is necessary, or whether existing bodies can be
assigned the tasks described above for the promotion of
non-discrimination exist in all Member States. At
present 'nationality' could be covered by the competence of existing Equality
bodies in 19 Member States[24].

Moreover, this Article provides for synergies between existing or
new structures or bodies with other information, promotion and support tools at
EU level, such as Your Europe, SOLVIT, EURES, Enterprise Europe Network and the
Points of Single Contact. 
Building on existing structures has the advantage of benefiting of
the existing knowledge and experience. It also increases simplicity and accessibility
since it avoids the risk of creating confusion and uncertainty as to where to
turn in case of problems.
3.4.3.2.  Article 6 - Dialogue
This Article requires Member States, in accordance with national
traditions and practices, to take adequate measures to encourage and promote
dialogue with social partners and non-governmental organisations which have, in
accordance with their national law and practice, a legitimate interest in
contributing to the fight against discrimination on grounds of nationality. 
3.4.4.     CHAPTER IV - ACCESS TO
INFORMATION
3.4.4.1.  Article 7 - Dissemination of
information
This
Article provides for the appropriate dissemination of information about the rights
of workers and members of their families in relation to equal treatment arising
from the Directive and from Articles 1 to 10 of Regulations (EU) No 492/2011. The
more effective the system of public information and prevention is, the less
need there should be for individual remedies. The proposal for a Directive
leaves the choice of information tools to the Member States, but on line or
digital information with links to the existing information tools at EU level,
Your Europe and EURES websites should be made compulsory.
However,
this can be complemented by any other public information activities reflecting the
best practices noted by the national experts and stakeholders such as
awareness-raising campaigns or specific information. The active role of social
partners, equality bodies, NGOs and other associations could also be very
important in the dissemination of the information. 
3.4.5.     CHAPTER V - FINAL
PROVISIONS
3.4.5.1.  Article 8 - Minimum
requirements
The first
paragraph is a standard 'non-regression' provision which specifies that Member
States may have, or may wish to adopt, legislation providing for a higher level
of protection than that guaranteed by the proposed Directive. 
The second paragraph expressly
indicates that Member States have the discretion to extend the competencies of
the bodies referred to in Article 5 to encompass also non-discrimination on
grounds of nationality for all EU citizens and their family members exercising
their right to free movement, as enshrined in Article 21 TFEU and Directive
2004/38/EC of the European Parliament and of the Council of 29 April 2004 on
the right of citizens of the Union and their family members to move and reside
freely within the territory of the Member States[25]. 
The third
paragraph provides that Member States should not lower any existing level of
protection against discrimination when implementing this Directive.
3.4.5.2.  Article 9 - Transposition
Member States are
required to adopt the necessary implementing measures within a period of 2
years after the entry into force of the Directive, and to fulfil certain information
requirements, such as communicating to the Commission how the Directive is
transposed into national law and making reference to the Directive in any
implementing measures.
In this context
in accordance with the Joint Political Declaration of
Member States and the Commission on explanatory documents of 28 September 2011,
it would be appropriate that Member States accompany the notification of their
transposition measures with one or more documents explaining the relationship
between the components of the present Directive and the corresponding parts of
national transposition instruments. Bearing in mind that for some provisions of
this Directive, such as those on structures or bodies foreseen in Article 5
several Member States dispose already legislation to fight discrimination on
other grounds in the context of the implementation of EU legislation, or
agencies with responsibility at national level for the defence of human rights
or the safeguard of individuals' rights, the explanatory documents would permit
to better identify the specific measures adopted or already in place in order
to fight discrimination on the basis of nationality.            

3.4.5.3.  Article 10 - Report
The Commission has to present a report to
the European Parliament, the Council and the European Economic and Social
Committee on the implementation of this Directive no later than two years after
the expiry of the deadline for its transposition. It can also make appropriate
proposals for further measures where necessary. Therefore, in the context of
its implementation report and experience gained on the ground, the Commission will
also monitor the way Member States opted to extend the competencies of
the structures and bodies referred to in Article 5 to the right to equal
treatment without discrimination on grounds of nationality of all Union
citizens and their family members exercising their right to free movement under
Union law.
3.4.5.4.  Article 11 - Entry into
force
This is a standard
clause specifying that this Directive will enter into force on
the day following that of its publication in the Official Journal of the
European Union.
3.4.5.5.  Article 12 - Addresses
This is a standard provision specifying that the Directive is
addressed to the Member States.
4.           BUDGETARY IMPLICATIONS
This proposal is expected to have limited
implications on the Union budget. Expenses for an evaluation study in 2015 are
estimated to not exceed 0,300 million EUR and will be covered by funds
available from the budget line financing the free movement of workers, coordination
of social security systems and measures for migrants, including migrants from
third countries. Costs for human resources (0,131 million EUR p.a.) will be
covered under heading 5 of the Multiannual Financial Framework. Details are
given in the financial statement annexed to this proposal.
2013/0124 (COD)
Proposal for a
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 
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 46 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national
Parliaments,
Having regard to the opinion of the European Economic and Social
Committee[26],
Having regard to the opinion of the Committee of the Regions[27],
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1)       The free movement of
workers is a fundamental freedom of EU citizens and one of the pillars of the
internal market in the Union enshrined in Article 45 of the Treaty on the
Functioning of the European Union. Its implementation is further developed by
Union law aimed at guaranteeing the full exercise of rights conferred on Union citizens
and the members of their families. 
(2)       The free movement of
workers is also a key element to the development of a genuine Union labour
market, allowing workers to move from high unemployment areas to areas where
there are labour shortages, helping more people find posts better suited to
their skills and overcoming bottlenecks in the labour market. 
(3)       The free movement of
workers gives every citizen the right to move freely to another Member State to
work and reside there for that purpose. It protects them against discrimination
on the grounds of nationality as regards employment, remuneration and other
working conditions by ensuring their equal treatment in comparison to nationals
of that Member State. It needs to be distinguished from the freedom to provide
services, which includes the right of undertakings to provide services in
another Member State, for which they may send (‘post’) their own workers to
another Member State temporarily to carry out the work necessary to provide
these services there.
(4)       With respect to workers
and workers' families exercising their right to free movement, Article 45 of
the Treaty confers substantial rights for the exercise of this fundamental
freedom, specified in Regulation (EU) No 492/2011 of the European Parliament
and of the Council of 5 April 2011 on freedom of movement for workers within
the Union[28].
(5)       However, the effective
exercise of the freedom of movement of workers is still a major challenge and
many workers are very often unaware of their rights to free movement. They
still suffer from discrimination on the grounds of nationality when moving
across European Union borders of the Member States. There is, therefore, a gap
between the legislation and its application in practice that needs to be
addressed.
(6)       In
July 2010, in its Communication on "
Reaffirming the free movement of workers: rights and major developments"[29] the Commission pointed
out that it will explore ways of tackling the new needs and challenges
(in particular in the light of new patterns of mobility) facing EU migrant
workers and their family members, and in the context of the new strategy for
the single market will consider 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.
(7)       In the 2010 EU Citizenship
Report "Dismantling the obstacles to EU citizens rights" of 27
October 2010[30],
the Commission identified the divergent and incorrect application of Union law
on the right to free movement as one of the main obstacles that Union citizens
are confronted with in the effective exercise of their rights under Union law.
Accordingly, the Commission announced its intention to take action to "facilitate
free movement of EU citizens and their third-country national family members by
enforcing EU rules strictly, including on non-discrimination, by promoting good
practices and increased knowledge or EU rules on the ground and by stepping up
the dissemination of information to EU citizens about their free movement
rights"(action 15 of the 2010 EU Citizenship Report). 
(8)       In
its Employment package of 18 April 2012 (Communication from the Commission "Towards
a job-rich recovery")[31],
the Commission announced its intention to "present a legislative proposal
(information and advice) in order to support mobile workers in the exercise of
rights derived from the Treaty and Regulation 492/2011 on freedom of movement
for workers within the Union".
(9)       Adequate
and effective application and enforcement are key elements in protecting the
rights of workers, whereas poor enforcement undermines the effectiveness of the
Union rules applicable in this area. 
(10)     A more effective and
uniform application of rights conferred by Union rules on free movement of
workers is also necessary for the proper functioning of the internal market.
(11)     The application and
monitoring of the Union rules on free movement should be improved to ensure
workers are better informed about their rights, to assist and to protect them
in the exercise of those rights, and to combat circumvention of these rules by
public authorities and public or private employers.
(12)     In order to ensure the
correct application of, and to monitor compliance with, the substantive rules
concerning workers' rights to free movement for work purposes, Member States
should take the appropriate measures to protect them against both discrimination
on grounds of nationality and any unjustified obstacle to the exercise of that
right.
(13)     To
that end it is appropriate to provide specific rules for effective enforcement of the substantive rules governing the freedom
of movement of workers, and to facilitate better and
more uniform application of Article 45 of the Treaty and of Regulation (EU) No
492/2011.
(14)     In
this context, workers who have been subject to discrimination on the grounds of
nationality, or to any unjustified restriction in exercising their right to
free movement, should have adequate and effective means of legal protection and
redress. When Member States only provide for
administrative procedures they shall ensure that any administrative decision
may be challenged before a tribunal in the sense of Article 47 of the Charter.
(15)     To
provide more effective levels of protection, associations and legal entities
should also be empowered to engage, as the Member States determine, on behalf
of or in support of any victim in proceedings, without prejudice to national
rules of procedure concerning representation and defense before the courts. 
(16)     In
relation to time limits foreseen in Articles 3(2) and 4(2) and in accordance
with the case law of the European Court of Justice[32] these time limits should be
such that they cannot be regarded as capable of rendering virtually impossible
or excessively difficult the exercise of rights conferred by Union law, 
(17)     Protection
against discrimination based on the grounds of nationality would itself be
strengthened by the existence of organisations in each Member State with
competence to promote equal treatment, to analyse the problems involved in
citizen's cases, to study possible solutions and to provide specific assistance
to Union workers exercising their right to free movement. 
(18)     It is up to each Member
State to decide whether the tasks referred to in Article 5 of this Directive
are attributed to an already existing body covering a wider range of
discrimination grounds. In the case the tasks under Article 5 will be covered
by expanding the mandate of an already existing body or structure, the Member
State should ensure allocation of sufficient resources to the existing body for
the performance of additional tasks in order to ensure that the performance of
already existing tasks of these bodies will not suffer.
(19)     Member States should ensure
the promotion of synergies with existing information and support tools at the
Union level and to this end they should ensure that existing or newly created
bodies are aware, make use of and co-operate with the existing information and
assistance services, such as Your Europe, SOLVIT, EURES, Enterprise Europe
Network and the Points of Single Contact.
(20)     Member
States should promote dialogue with non-governmental organisations and between
social partners to address and combat different forms of discrimination on the
grounds of nationality.
(21)     Member
States should make information about employment terms and conditions more
widely available to workers from other Member States, to employers and to other
interested parties. 
(22)     Member
States should establish how employers, workers and other people can be provided
with easily accessible, relevant information on the
provisions of this Directive and the relevant provisions of Regulation (EU) No
492/2011. This information should also be easily
accessible through Your Europe and EURES.
(23)     This Directive lays down
minimum requirements, thus giving the Member States the option of introducing
or maintaining more favourable provisions. Member States also have the
possibility to extend the competencies of the organisations entrusted with
tasks related to the protection of Union migrant workers against discrimination
on grounds of nationality so as to cover the right to equal treatment without discrimination
on grounds of nationality of all Union citizens and their family members
exercising their right to free movement, as enshrined in Article 21 TFEU and
Directive 2004/38/EC of the European Parliament and of the Council of 29 April
2004 on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States[33]. The implementation of the
present Directive should not serve to justify any regression in relation to the
situation which already prevails in each Member State.
(24)     The effective
implementation of the provisions of this Directive implies that Member States, when
adopting the appropriate measures to comply with their obligations under this
Directive, should provide a reference to this Directive or accompanied by such
a reference on the occasion of the official publication of implementing
measures.
(25)     In accordance with the
Joint Political Declaration of Member States and the Commission on explanatory
documents of 28 September 2011, Member States have undertaken to accompany, in
justified cases, the notification of their transposition measures with one or
more documents explaining the relationship between the components of a
directive and the corresponding parts of national transposition instruments.
With regard to this Directive, the legislator considers the transmission of such
documents to be justified.      
(26)     After a sufficient time of
implementation of the Directive has elapsed, the Commission should prepare a
report on its implementation, evaluating in particular the opportunity to
present any necessary proposal aiming to guarantee a better enforcement of the
Union law on free movement. 
(27)     This Directive respects the
fundamental rights and observes the principles recognised in the Charter of
Fundamental Rights of the European Union, notably the freedom to choose an
occupation and the right to engage in work (Article 15), the right to
non-discrimination (Article 21 and in particular Paragraph 2 concerning
non-discrimination on the grounds of nationality), the right to collective
bargaining and action (Article 28), fair and just working conditions (Article
31), the right to freedom of movement and residence (Article 45) and the right
to an effective remedy and a fair trial (Article 47). It has to be implemented
in accordance with those rights and principles.
(28)     Since the objective of this
Directive, namely to establish a general common framework of appropriate
provisions, measures and mechanisms necessary for the better and more uniform
application and enforcement in practice of rights conferred by the Treaty and
Regulation (EU) No 492/2011, cannot be sufficiently achieved by the Member
States, and can therefore, by reason of the scale and effect of the action, be
better achieved at Union level, the Union may adopt measures in accordance with
the principle of subsidiarity as set out in Article 5 of the Treaty of the
European Union. In accordance with the principle of proportionality, as set out
in that Article, this Directive does not go beyond what is necessary in order
to achieve that objective.
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
This Directive lays down provisions facilitating uniform application
and enforcement in practice of rights conferred by Article 45 of the Treaty on
the Functioning of the European Union (TFEU) and by provisions of Articles 1 to
10 of Regulation (EU) No 492/2011 of the European Parliament and of the
Council of 5 April 2011 on freedom of movement for workers within the
Union. 
Article 2
Scope
This Directive applies
to the following matters in the area of freedom of movement for workers:
(a)        access to employment;
(b)        conditions of employment and
work, in particular as regards remuneration and dismissal;
(c)        access to social and tax
advantages;
(d)        membership of trade unions;
(e)              
access to training;
(f)                
access to housing;
(g)              
access to education for workers' children.
CHAPTER II
ENFORCEMENT
Article 3
Defence of rights - Means of redress - Time limits
1. Member States shall ensure that judicial
and/or administrative procedures, including where they deem it appropriate,
conciliation procedures, for the enforcement of the obligations under Article
45 of the Treaty and Articles 1 to 10 of Regulation (EU) No 492/2011, are
available to all workers and members of their families who consider they have
suffered or are suffering from unjustified restrictions to their right to free
movement or consider themselves wronged by failure to apply the principle of
equal treatment to them, even after the relationship in which the
discrimination is alleged to have occurred has ended.
2. Paragraph 1
shall apply without prejudice to national rules on time limits for enforcement
of those rights. These time limits shall be such that they cannot be regarded
as capable of rendering virtually impossible or excessively difficult the
exercise of rights conferred by Union law. 
Article 4
Action of associations, organisations or other legal entities
1. Member States shall ensure that associations, organisations or
other legal entities, which have, in accordance with the criteria laid down by
their national law, a legitimate interest in ensuring that the provisions of
this Directive are complied with, may engage, either on behalf of or in support
of the worker and members of his/her family, with his/her approval, in any
judicial and/or administrative procedure provided for the enforcement of rights
under Article 45 of the Treaty and Articles 1 to 10 of Regulation (EU) No 492/2011.
2. Paragraph 1
shall apply without prejudice to national rules on time limits for enforcement
of those rights. These time limits shall be such that they cannot be regarded as
capable of rendering virtually impossible or excessively difficult the exercise
of rights conferred by Union law. 
CHAPTER III
PROMOTION OF
EQUAL TREATMENT-STRUCTURES, BODIES-DIALOGUE
Article 5
Structures - bodies 
1. Member States shall designate a
structure, a body or bodies for the promotion, analysis, monitoring and support
of equal treatment of all workers or members of their families without
discrimination on grounds of nationality and make the necessary arrangements
for functioning of such bodies. These bodies may form part of agencies at a national
level with similar objectives but covering a wider range of discrimination
grounds. In that case, the Member State shall ensure allocation of sufficient
resources to the existing body for the performance of additional tasks in order
to ensure that the performance of already existing tasks of these bodies will
not suffer.
2. Member States shall ensure that the
competences of these bodies include:
(a)                   
without prejudice to the right of workers or the
members of their family and associations and organisations or other legal
entities referred to in Article 4, the provision of independent legal and/or
other assistance to workers or the members of their family in pursuing their
complaints;
(b)                   
conducting independent surveys concerning
discrimination on the basis of nationality;
(c)                   
publishing independent reports and making
recommendations on any issue relating to such discrimination;
(d)                   
publishing information on any issue relating to
the application at national level of EU rules on free movement of workers.
3. Member States shall ensure that existing
or newly created bodies are aware, make use of and co-operate with the existing
information and assistance services at Union level, such as Your Europe,
SOLVIT, EURES, Enterprise Europe Network and the Points of Single Contact.
Article 6
Dialogue 
Member States
shall encourage dialogue with appropriate non-governmental organisations and
the social partners which have, in accordance with their national law and
practice, a legitimate interest in contributing to the fight against
discrimination on grounds of nationality with a view to promoting the principle
of equal treatment. 
CHAPTER IV
ACCESS TO INFORMATION
Article 7
Dissemination of information
1. Member States shall ensure that the
provisions adopted pursuant to this Directive together with the relevant provisions
already in force in Articles 1 to 10 of Regulation (EU) No 492/2011, are
brought to the attention of the persons concerned by all appropriate means
throughout their territory.
2. Member States shall provide clear,
easily accessible, comprehensive and up-to-date information on the rights
conferred by the Union law on free movement of workers. . This information
should also be easily accessible through Your Europe and EURES.
CHAPTER V
FINAL PROVISIONS
Article 8
Minimum requirements
1. Member States may introduce or
maintain provisions which are more favourable to the protection of the
principle of equal treatment than those laid down in this Directive.
2. Member States may provide that the
competencies of the structures and bodies referred to in Article 5 for the promotion,
analysis, monitoring and support of equal treatment of all workers or members
of their families without discrimination on grounds of nationality, also cover the
right to equal treatment without discrimination on grounds of nationality of
all EU citizens and their family members exercising their right to free
movement, as enshrined in Article 21 TFEU and Directive 2004/38/EC of the
European Parliament and of the Council of 29 April 2004 on the right of
citizens of the Union and their family members to move and reside freely within
the territory of the Member States.
3. Implementation of this Directive
shall under no circumstances be sufficient grounds for a reduction in the level
of protection of workers in the areas to which it applies, without prejudice to
the Member States' right to respond to changes in the situation by introducing
laws, regulations and administrative provisions which differ from those in
force on the notification of this Directive, provided that the provisions of
this Directive are complied with.
Article 9
Transposition
1. Member States shall bring into force the
laws, regulations and administrative provisions necessary to comply with this
Directive by [2 years after its entry into force-specific date to be inserted
by the OPOCE] at the latest. They shall forthwith communicate to the Commission
the text of those provisions. 
2. When Member States adopt those
provisions they shall contain a reference to this Directive or be accompanied
by such a reference on the occasion of their official publication. Member
States shall determine how such reference is to be made.
3. Member States shall communicate to the
Commission the text of the main provisions of national law which they adopt in
the field covered by this Directive. 
Article 10
Report
No later than two years after the expiry of
the deadline for transposition, the Commission shall report to the European
Parliament, the Council and the European Economic and Social Committee on the
implementation of this Directive, with a view to proposing where appropriate,
the necessary amendments. 
Article 11
Entry into force
This Directive shall enter into force on
the day following that of its publication in the Official Journal of the
European Union.
Article 12
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 
For the European Parliament                       For
the Council
The President                                                 The
President
LEGISLATIVE FINANCIAL STATEMENT
1.         FRAMEWORK OF THE
PROPOSAL/INITIATIVE 
            1.1.      Title of the proposal/initiative 
            1.2.      Policy
area(s) concerned in the ABM/ABB structure
            1.3.      Nature
of the proposal/initiative 
            1.4.      Objective(s)

            1.5.      Grounds
for the proposal/initiative 
            1.6.      Duration
and financial impact 
            1.7.      Management
method(s) envisaged 
2.         MANAGEMENT MEASURES 
            2.1.      Monitoring
and reporting rules 
            2.2.      Management
and control systems 
            2.3.      Measures
to prevent fraud and irregularities 
3.         ESTIMATED FINANCIAL
IMPACT OF THE PROPOSAL/INITIATIVE 
            3.1.      Heading(s)
of the multiannual financial framework and expenditure budget line(s) affected 
            3.2.      Estimated
impact on expenditure 
            3.2.1.   Summary
of estimated impact on expenditure 
            3.2.2.   Estimated
impact on operational appropriations 
            3.2.3.   Estimated
impact on appropriations of an administrative nature
            3.2.4.   Compatibility
with the current multiannual financial framework
            3.2.5.   Third-party
participation in financing 
            3.3.      Estimated impact on revenue
LEGISLATIVE FINANCIAL
STATEMENT
1.           FRAMEWORK OF THE PROPOSAL/INITIATIVE 
1.1.        Title of the
proposal/initiative 
1.2.        Proposal for a 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   
Policy area(s) concerned in the ABM/ABB structure[34] 
Employment,
Social Dialogue
1.3.        Nature of the
proposal/initiative 
¨ The
proposal/initiative relates to a new action 
¨ The
proposal/initiative relates to a new action following a pilot
project/preparatory action[35] 
x The proposal/initiative relates to the
extension of an existing action 
¨ The
proposal/initiative relates to an action redirected towards a new action 
1.4.        Objectives
1.4.1.     The Commission's
multiannual strategic objective(s) targeted by the proposal/initiative 
Contributing to the European 2020 targets:
- Promote increased participation in the labour
market
- Develop a safe, flexible and mobile European
labour market
- Promote social and economic cohesion
1.4.2.     Specific objective(s) and
ABM/ABB activity(ies) concerned 
Specific
objective No.2 (EMPL):
Promote
geographic and professional mobility of workers in Europe in order to overcome
the obstacles of free movement and to contribute to the establishment of a real
labour market at European level.
1.4.3.     Expected result(s) and
impact
Specify the
effects which the proposal/initiative should have on the beneficiaries/groups
targeted.
The proposal aims at a better application and enforcement in
practice of free movement rights, combating discrimination on the basis of
nationality and reducing the obstacles migrant workers still face.
1.4.4.     Indicators of results and
impact 
Specify the
indicators for monitoring implementation of the proposal/initiative.
Several
indicators, both quantitative (e.g.; the number of complaints or the degree of
raise awareness) and qualitative (the reports on the application of the
Directive and of free movement legislation) will be used for monitoring
purposes. The supporting bodies set up according to this proposal for a
Directive will also have a monitoring role and will be able to provide more qualitative
data on discrimination on the grounds of nationality.
Moreover
the Commission intends to evaluate the impact of this Directive with:
-a systematic evaluation by the Commission
services with the involvement of the Advisory Committee on free movement of
workers;
-the presentation of a report 2 years after the
deadline of transposition;
-assess the activities developed by the
supporting bodies and associations;
-assess whether the Directive has led to positive
changes
-identify the difficulties faced by equality
supporting bodies, associations and organisations.
1.5.        Grounds for the
proposal/initiative 
1.5.1.     Requirement(s) to be met in
the short or long term 
The
proposal will aim at improving and reinforcing the, application and enforcement
in practice of the EU rules on free movement of workers (Article 45TFEU and
Regulation (EU) No 492/2011 Articles 1 to 10 relating to access to employment
and employment and working conditions). By providing specific tools and
mechanisms of information and advice, it ensures at the same time guarantees
for a more effective exercise in practice of these rights in order to reduce
discriminations on the grounds of nationality and to contribute to the removal
of unjustified obstacles to the freedom of movement of workers which is one of
the principal components for the realisation of the Internal Market.
1.5.2.     Added value of EU
involvement
The
problems identified are linked to the objectives set out by Article 3(3) TEU
and Articles 45 TFEU. The existing legal framework, application and enforcement
in practice as well as previous attempts to address existing problems by the
way of non-binding measures have not been sufficient to solve the identified
problems. Therefore, it is necessary to address the existing problems at EU
level in order to better achieve the objectives of the Treaty.
1.5.3.     Lessons learned from
similar experiences in the past
Previous
attempts to solve problems of implementation and enforcement in practice of the
EU law on free movement of workers and in particular of Regulation (EU) No 492/2011
by non-legislative means have not reached their objectives. The issues have
been addressed by interpretative Legal Commission’s Communications in 2002 and in
2010. The respective Communications provided, in the light of the case law of
the CJ further clarifications for Member States. However, the monitoring
exercise of application of EU law on free movement showed that there were
always a number of deficiencies; Since October 2010, the Commission launched several
ex-post evaluation studies of the problems faced by EU workers when exercising
their right to free movement: (two independent reports of the Network of
experts on free movement of workers discussed within the Advisory committee on
free movement of workers which concluded that the right for an equal treatment
on the basis of nationality is rarely offered the same level of protection and
guarantees as the right on equal treatment on other grounds (race, sex…) in the
Member States. EU workers are still considered in most Member states as holding
a status closer to that of third country national and not to that of a
national. Moreover, if sometimes they benefit, in cases of nationality based
discrimination, from these guarantees and protection is due to a broader
interpretation of national law which assimilates nationality to ethnic origin.
Therefore there is a need for a stronger protection of nationality based
discrimination.
In order to
prepare the Impact Assessment an ex-ante evaluation study has been carried out
by an external consultant in 2012.
1.5.4.     Coherence and possible
synergy with other relevant instruments
Fundamental
rights: The proposal is consistent with the EU's fundamental rights strategy, COM(2010)
573 final.
Europe 2020
strategy: The initiative will contribute to the creation of employment within
the strategy for smart, sustainable and socially inclusive growth (Europe
2020).
Single
Market Act: The proposal will in particular facilitate the free movement of
work force and will contribute to a better functioning of the Internal market.
It will contribute to better match workers with jobs, allowing more persons to
find jobs corresponding to their skills and overcoming bottlenecks in the
European labour market.
1.6.        Duration and financial
impact 
x Proposal/initiative of limited
duration 
¨      Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY 
x      Financial impact from 2013 to 2020
The implementation of the directive is of
unlimited duration but will be reassessed after two years after the deadline
for transposition has expired.
¨ Proposal/initiative of unlimited
duration
–              
Implementation with a start-up period from 2013
to 2014,
–              
followed by full-scale operation
1.7.        Management mode(s)
envisaged[36]

x Centralised direct management by the Commission 
¨ Centralised indirect management with the delegation of implementation tasks to:
¨      executive agencies 
¨      bodies set up by the Communities[37] 
¨      national public-sector bodies/bodies with public-service
mission 
¨      persons entrusted with the implementation of specific actions
pursuant to Title V of the Treaty on European Union and identified in the
relevant basic act within the meaning of Article 49 of the Financial Regulation

¨ Shared management with the Member States 
¨ Decentralised management with third countries 
¨ Joint management with international organisations (to be specified)
If more than one
management mode is indicated, please provide details in the
"Comments" section.
Comments 
2.           MANAGEMENT MEASURES 
2.1.        Monitoring and reporting
rules 
Specify
frequency and conditions.
Two years
after the deadline for transposition there will be an on-going evaluation. The
main focus of this evaluation will be to assess the initial effectiveness of
the Directive. Emphasis will be placed on the improvement of enforcement and
effectiveness of EU rules on free movement of workers after the adoption of
implementing measures on information and advice provided by this Directive,
This evaluation will be carried out by the Commission with the assistance of
external experts. Terms of reference will be developed by Commission services.
Stakeholders will be informed of and asked to comment on the draft evaluation
through the Advisory Committee on free movement of workers and they will also
be regularly informed of the progress of the evaluation and its findings. The
findings will be made public.
2.2.        Management and control
system 
2.2.1.     Risk(s) identified 
Limited
risks due to low financial impact.
2.2.2.     Control method(s) envisaged

Standard
risk-mitigating measures will be applied.
2.3.        Measures to prevent fraud
and irregularities 
Specify
existing or envisaged prevention and protection measures.
Standard
risk-mitigating measures will be applied.
3.           ESTIMATED FINANCIAL IMPACT OF THE
PROPOSAL/INITIATIVE 
3.1.        Heading(s) of the
multiannual financial framework and expenditure budget line(s) affected 
Existing expenditure budget lines 
In order of
multiannual financial framework headings and budget lines.
 Heading of multiannual financial framework || Budget line || Type of expenditure || Contribution 
 Number [Description………………………...……….] || Diff./non-diff. ([38]) || from EFTA[39] countries || from candidate countries[40] || from third countries || within the meaning of Article 18(1)(aa) of the Financial Regulation 
 1 || – Free Movement of Workers, coordination of social security schemes || Diff || YES || No || No || NO 
   ||   ||   ||   ||   ||   ||   
New budget lines requested 
In order of multiannual financial framework
headings and budget lines.
 Heading of multiannual financial framework || Budget line || Type of expenditure || Contribution 
 Number [Heading……………………………………..] || Diff./non-diff. || from EFTA countries || from candidate countries || from third countries || within the meaning of Article 18(1)(aa) of the Financial Regulation 
   || [XX.YY.YY.YY]   ||   || YES/NO || YES/NO || YES/NO || YES/NO 
3.2.        Estimated impact on expenditure

3.2.1.     Summary of estimated impact
on expenditure 
EUR million (to 3 decimal
places)
 Heading of multiannual financial framework: || 1 || Sustainable growth (from 2014 onwards: Smart and Inclusive Growth) 
 DG: EMPL[41] ||   ||   || Year 2013[42] || Year 2014 || Year 2015 || Year 2016 || Year 2017 || Year 2018 || Year 2019 || Year 2020 || TOTAL 
  Operational appropriations ||   ||   ||   ||   ||   ||   ||   ||   ||   
 04.030500 || Commitments || (1) || 0 || 0 || 0,300 || 0 || 0 || 0 || 0 || 0 || 0,300 
 Payments || (2) || 0 || 0 || 0,150 || 0,150 || 0 || 0 || 0 || 0 || 0,300 
   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Appropriations of an administrative nature financed  from the envelope for specific programmes[43] ||   ||   ||   ||   ||   ||   ||   ||   ||   
   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 TOTAL appropriations for DG EMPL || Commitments || =1+1a +3 || 0 || 0 || 0,300 || 0 || 0 || 0 || 0 || 0 || 0,300 
 Payments || =2+2a+3 || 0 || 0 || 0,150 || 0,150 || 0 || 0 || 0 || 0 || 0,300 
  TOTAL operational appropriations || Commitments || (4) || 0 || 0 || 0,300 || 0 || 0 || 0 || 0 || 0 || 0,300 
 Payments || (5) || 0 || 0 || 0,150 || 0,150 || 0 || 0 || 0 || 0 || 0,300 
  TOTAL appropriations of an administrative nature financed from the envelope for specific programmes || (6) ||   ||   ||   ||   ||   ||   ||   ||   ||   
 TOTAL appropriations under HEADING 1 of the multiannual financial framework || Commitments || =4+ 6 || 0 || 0 || 0,300 || 0 || 0 || 0 || 0 || 0 || 0,300 
 Payments || =5+ 6 || 0 || 0 || 0,150 || 0,150 || 0 || 0 || 0 || 0 || 0,300 
 Heading of multiannual financial framework: || 5 || " Administrative expenditure " 
EUR million (to 3 decimal
places)
   ||   ||   || Year 2013 || Year 2014 || Year 2015 || Year 2016 || Year 2017 || Year 2018 || Year 2019 || Year 2020 || TOTAL 
 DG: EMPL || 
  Human resources || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
  Other administrative expenditure ||   ||   ||   ||   ||   ||   ||   ||   ||   
 TOTAL DG EMPL || Appropriations || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
 TOTAL appropriations under HEADING 5 of the multiannual financial framework || (Total commitments = Total payments) || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
EUR million (to 3 decimal
places)
   ||   ||   || Year 2013 || Year 2014 || Year 2015 || Year 2016 || Year 2017 || Year 2018 || Year 2019 || Year 2020 || TOTAL   
 TOTAL appropriations under HEADINGS 1 to 5 of the multiannual financial framework || Commitments || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
 Payments || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
3.2.2.     Estimated impact on
operational appropriations 
¨           The
proposal/initiative does not require the use of operational appropriations 
x          The
proposal/initiative requires the use of operational appropriations, as
explained below:
Commitment appropriations
in EUR million (to 3 decimal places)
 Indicate objectives and outputs   ò ||   ||   || Year 2013 || Year 2014 || Year 2015 || Year 2016 || Year 2017 || Year 2018 || Year 2019 || Year 2020 || TOTAL 
 OUTPUTS 
 Type of output[44] || Average cost of the output || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number || Cost || Number || Cost 
 SPECIFIC OBJECTIVE No 2[45]: promote geographic and professional mobility ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Evaluation by the Commission with support from experts || Assessment of positive impact and identified challenges || 0, 300 ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || 1 || 0,300 ||   ||   ||   ||   ||   ||   
   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Sub-total for specific objective N°1 ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || 1 || 0,300 ||   ||   ||   ||   ||   ||   
 TOTAL COST ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || 1 || 0,300 ||   ||   ||   ||   ||   ||   
3.2.3.     Estimated impact on
appropriations of an administrative nature
3.2.3.1.  Summary 
¨      The proposal/initiative does not require the use of
administrative appropriations 
x      The proposal/initiative requires the use of administrative
appropriations, as explained below:
EUR million (to 3 decimal
places)
   || Year 2013 [46] || Year 2014 || Year 2015 || Year 2016 || Year 2017 || Year 2018 || Year 2019 || Year 2020 || TOTAL 
 HEADING 5 of the multiannual financial framework ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Human resources || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
 Other administrative expenditure ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Subtotal HEADING 5 of the multiannual financial framework || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
 Outside HEADING 5[47] of the multiannual financial framework ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Human resources ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Other expenditure of an administrative nature ||   ||   ||   ||   ||   ||   ||   ||   ||   
 Subtotal outside HEADING 5 of the multiannual financial framework ||   ||   ||   ||   ||   ||   ||   ||   ||   
 TOTAL || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 0,131 || 1,048 
3.2.3.2.   Estimated requirements of
human resources 
¨      The proposal/initiative does not require the use of human
resources 
x      The proposal/initiative requires the use of human resources,
as explained below:
Estimate to be expressed
in full amounts (or at most to one decimal place)
   || Year 2013 || Year 2014 || Year 2015 || Year 2016 || Year 2017 || Year 2018 || Year 2019 || Year 2020 
  Establishment plan posts (officials and temporary agents) 
 XX 01 01 01 (Headquarters and Commission’s Representation Offices) (1 AD) || 131000 || 131000 || 131000 || 131000 || 131000 || 131000 || 131000 || 131000 
 XX 01 01 02 (Delegations) ||   ||   ||   ||   ||   ||   ||   ||   
 XX 01 05 01 (Indirect research) ||   ||   ||   ||   ||   ||   ||   ||   
 10 01 05 01 (Direct research) ||   ||   ||   ||   ||   ||   ||   ||   
  External personnel (in Full Time Equivalent unit: FTE)[48] 
 XX 01 02 01 (CA, INT, SNE from the "global envelope") (1 SNE) ||   ||   ||   ||   ||   ||   ||   ||   
 XX 01 02 01 (CA, INT, SNE from the "global envelope") (0,5 CA) ||   ||   ||   ||   ||   ||   ||   ||   
 XX 01 02 02 (CA, INT, JED, LA and SNE in the delegations) ||   ||   ||   ||   ||   ||   ||   
 XX 01 04 yy [49] || - at Headquarters[50] ||   ||   ||   ||   ||   ||   ||   
 - in delegations ||   ||   ||   ||   ||   ||   ||   
 XX 01 05 02 (CA, INT, SNE - Indirect research) ||   ||   ||   ||   ||   ||   ||   
 10 01 05 02 (CA, INT, SNE - Direct research) ||   ||   ||   ||   ||   ||   ||   
 Other budget lines (specify) ||   ||   ||   ||   ||   ||   ||   
 TOTAL || 131000 || 131000 || 131000 || 131000 || 131000 || 131000 || 131000 || 131000 
XX is the
policy area or budget title concerned.
The human
resources required will be met by staff from the DG who are already assigned to
management of the action and/or have been redeployed within the DG, together if
necessary with any additional allocation which may be granted to the managing
DG under the annual allocation procedure and in the light of budgetary
constraints.
Description of tasks to be
carried out:
 Officials and temporary agents (1 AD) || monitoring transposition, infringement procedures, coordination call for proposals/tenders, coordination administrative cooperation 
   ||   
   ||   
3.2.4.     Compatibility with the
current multiannual financial framework 
x      Proposal/initiative is compatible with both MFF 2007-2013 and
2014-2020.
¨      Proposal/initiative will entail reprogramming of the relevant
heading in the multiannual financial framework.
Explain what reprogramming is required, specifying the
budget lines concerned and the corresponding amounts.
¨      Proposal/initiative requires application of the flexibility
instrument or revision of the multiannual financial framework[51].
Explain what is required, specifying the headings and
budget lines concerned and the corresponding amounts.
3.2.5.     Third-party contributions 
x The proposal/initiative does not provide for co-financing by third
parties 
¨ The proposal/initiative provides for the co-financing estimated
below:
Appropriations in EUR
million (to 3 decimal places)
   || Year N || Year N+1 || Year N+2 || Year N+3 || … enter as many years as necessary to show the duration of the impact (see point 1.6) || Total 
 Specify the co-financing body ||   ||   ||   ||   ||   ||   ||   ||   
 TOTAL appropriations cofinanced ||   ||   ||   ||   ||   ||   ||   ||   
3.3.        Estimated impact on
revenue 
x Proposal/initiative has no financial impact on revenue.
¨ Proposal/initiative has the following financial impact:
¨      on own resources 
¨      on miscellaneous revenue 
EUR million (to 3 decimal
places)
 Budget revenue line: || Appropriations available for the on-going budget year || Impact of the proposal/initiative[52] 
 Year N || Year N+1 || Year N+2 || Year N+3 || … insert as many columns as necessary in order to reflect the duration of the impact (see point 1.6) 
 Article …………. ||   ||   ||   ||   ||   ||   ||   ||   
For miscellaneous
assigned revenue, specify the budget expenditure line(s) affected.
Specify the method
for calculating the impact on revenue.
[1]               Regulation (EU) No 492/2011 of the European
Parliament and of the Council of 5 April 2011 on freedom of movement for
workers within the Union, OJ L 141, 27.5.2011, p. 1–12. This regulation
codifies Regulation 1612/68 and its successive amendments. 
[2]               For a full description of the rights stemming from
article 45 TFEU and Regulation 492/2011, please consult the Communication of
the Commission «Reaffirming the free movement of workers : rights and
major developments” COM(2010) 373 final of 13 July 2010, supplemented by the
Commission Staff Working Document. 
[3]               Eurostat, EU-Labour Force Survey 2011. However, it should be noted that available data sources tend to
underestimate the number of mobile EU citizens living/working in other EU
Member States, either because those 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.
[4]               Eurobarometer 363 "Internal Market: Awareness,
Perceptions and Impacts", September 2011 http://ec.europa.eu/public_opinion/archives/ebs/ebs_363_en.pdf
[5]               http://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2011/10-25/0455/P7_TA-PROV(2011)0455_EN.pdf
[6]               COM(2010) 373 final of 13 July 2010
[7]               COM(2010)603
[8]               Action 15 of the 2010 EU Citizenship Report
[9]               COM(2012) 173 final of 18
April 2012
[10]             http://ec.europa.eu/soteu2012/
[11]             Report by 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.
[12]             Decision 1093/2012/EU of the European Parliament and of
the Council of 21 November 2012 on the European Year of Citizens (2013), OJ L 325, 23.11.2012, p. 1 
[13]             See below under point 2.
[14]             Eurobarometer 363 "Internal Market: Awareness,
Perceptions and Impacts", September 2011 http://ec.europa.eu/public_opinion/archives/ebs/ebs_363_en.pdf
[15]             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 for each Member State, available at 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
[16]             Thematic report "Application of Regulation
1612/68", January 2011 http://ec.europa.eu/social/main.jsp?catId=475&langId=en
[17]             A summary of the responses received is included in
annexes 7 and 8 of the Commission Staff working document annexed to this
proposal "Initiative to support EU migrant workers in the exercise of
their rights to free movement".
[18]             Multiple Framework Contract VT
2011/012, Study to analyse and assess the
socio-economic and environmental impact of possible EU initiatives in the area
of freedom of movement of workers, in particular with regard to the enforcement
of the current EU provisions (VC/2011/0476).
[19]             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, http://ec.europa.eu/social/main.jsp?catId=474&langId=en
[20]             Technical Committee foreseen by Regulation 492/2011 is
composed by representatives of Member States.
[21]             See in particular in Case C-325/08: Judgment of the Court
of 16 March 2010, Olympique Lyonnais SASP v Olivier Bernard, Newcastle
United FC, ECR 2010, p.I-2177.
[22]             Judgement of 16th May 2000 in case C-78/98 Preston ECR
2000 p. I-03201.
[23]             At present, this right under different forms exist in
the majority of Member States except Germany, Estonia and Malta.
[24]             AT, BE, BG, EE, FI, FR, HU, IE, IT, LT, LV, NL, PL, PT,
RO, SE, SL, SK, UK. For more information please refer to the Commission Staff
working document annexed to this proposal "Initiative to support EU
migrant workers in the exercise of their rights to free movement", point
3.1.3.
[25]             OJ L 158, 30.4.2004
[26]             OJ C , , p. .
[27]             OJ C , , p. .
[28]             OJ L 141, 27.5.2011, p. 1.
[29]             COM(2010) 373 final of 13 July 2010
[30]             COM(2010)603
[31]             COM(2012) 173 final of 18 April
2012
[32]             Judgement of 16th May 2000 in case C-78/98 Preston ECR
2000 p. I-03201.
[33]             OJ L 158, 30.4.2004
[34]             ABM: Activity-Based Management – ABB: Activity-Based
Budgeting.
[35]             As referred to in Article 49(6)(a) or (b) of the
Financial Regulation.
[36]             Details of management modes and references to the
Financial Regulation may be found on the BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html
[37]             As referred to in Article 185 of the Financial
Regulation.
[38]             Diff. = Differentiated appropriations / Non-diff. =
Non-Differentiated Appropriations
[39]             EFTA: European Free Trade Association. 
[40]             Candidate countries and, where applicable, potential
candidate countries from the Western Balkans.
[41]             For details on the general IMI funding see COM(2011)
522 final (proposal on the IMI Regulation).
[42]             Year N is the year in which implementation of the
proposal/initiative starts.
[43]             Technical and/or administrative assistance and
expenditure in support of the implementation of EU programmes and/or actions
(former "BA" lines), indirect research, direct research.
[44]             Outputs are products and services to be supplied (e.g.:
number of student exchanges financed, number of km of roads built, etc.).
[45]             As described in Section 1.4.2. "Specific
objective(s)…"
[46]             Year N is the year in which implementation of the
proposal/initiative starts.
[47]             Technical and/or administrative assistance and
expenditure in support of the implementation of EU programmes and/or actions
(former "BA" lines), indirect research, direct research.
[48]             CA= Contract Agent; INT= agency staff ("Intérimaire");
JED= "Jeune Expert en Délégation" (Young Experts in Delegations); LA=
Local Agent; SNE= Seconded National Expert; 
[49]             Under the ceiling for external personnel from
operational appropriations (former "BA" lines).
[50]             Essentially for Structural Funds, European Agricultural
Fund for Rural Development (EAFRD) and European Fisheries Fund (EFF).
[51]             See points 19 and 24 of the Inter-institutional
Agreement.
[52]             As regards traditional own resources (customs duties,
sugar levies), the amounts indicated must be net amounts, i.e. gross amounts
after deduction of 25% for collection costs.