Labour mobility within the European Union: Findings, stakes and prospects.

FRANCOIS VANDAMME [*]

The Member States of the European Union (EU) are committed to ever-closer political union between their peoples and to the objective of a common internal market. The achievement of labour mobility between Member States was expected to present a number of advantages within this dual programme. The free movement of labour within the Community was the first major achievement of Community social policy. However, this form of freedom, later extended to all persons, is not available under the same conditions to the nationals of non-EU states. Such third-country nationals do not easily have access to work in the EU, in view of the priority given to nationals within Member states and of the preference for EU nationals on the Community labour market, and they frequently encounter discrimination in the workplace. In practice, nationals of the EU -- both those already in another Member State and those who would like to settle there at some future date -- also come up against obstacles in spite of the Community legal fr amework and the individual fundamental rights which they enjoy. Should Community regulations therefore be given greater force? Or do the problems occur because of various types of resistance and obstacles of a non-legal nature? Is there still the political will to continue promoting labour mobility in Europe? Is there agreement on its importance or should it now be downplayed?

And now, discussion of EU employment policy and the philosophy which emerged at the European Council's meeting in Lisbon [1] draws attention to the urgent need to improve the management and training of human resources in Europe.

Objectives

Originally, in the Treaty of Rome which set up the European Economic Community, the free movement of labour, a basic constituent freedom of the common market, was conceived of as a fundamental right enjoyed by the nationals of Member States and as providing a framework for labour mobility within the Community area. Such mobility was to be encouraged as both enabling and accompanying the right of establishment of undertakings in another Member State, the transnational provision of services, as well as the free movement of goods and of capital. This mobility was to bring about social mobility as from the time at which Community law, in application of the Treaty, had made provision for the practical and legal consequences of mobility for workers and their families. In 1957, the architects of the European Community probably intended to extend long-term labour mobility only to workers from inside the Community. This view is based on observation of the greater importance given in Community law in application of th e original treaty, and in the measures taken by the European Commission and the European Parliament, to guaranteeing the right of residence than to guaranteeing the freedom of movement within Member States' territory. For its part, the European Court of Justice guaranteed respect for the principle of nondiscrimination on the basis of nationality in the granting of social benefits provided under the laws of the Member States, and checked that the coordination of Member State legislation on social security was operating properly.

The nationals of non-EU states have rights to labour mobility only in so far as these are in principle guaranteed in agreements reached between their countries and the European Union. Agreements exist granting benefits to third-country nationals living legally in a Member State, but the conditions of entry and of access to employment are very restrictive. And such agreements, for example, those reached with Morocco and Turkey, have not prevented discriminatory practices, notably in social security matters, from being practised against nationals of those countries. Later on, the free movement of persons became necessary. [2] However, this objective proved difficult to achieve because of a politico-legal wrangle between the European Commission, the guardian of the treaties, and the Member States assembled in the Council over whether this objective would have a direct effect on the beneficiaries, allowing them to invoke this right before the courts, should the case arise, in the absence of any intervention or r egulation from the Community institutions, because of the simple fact of the existence of a common market, of which this freedom was a constituent part.

By making it into a citizenship issue in the subsequent Maastricht Treaty (1992), an attempt was made to give more practical scope to the right of free movement, but only in relation to EU nationals. The aim is to make the rights of residence and movement into fundamental, individual rights. [3] Provision has been made within the framework of a co-decision procedure, which requires joint agreement with the European Parliament, for the Council to be able to determine measures enabling the exercise of these rights, which therefore do not have direct effect. In the current state of Community law, Citizenship status is defined in terms of rights and duties; [4] it is complemented by the principle of non-discrimination on the basis of nationality.

However, the aspects of free movement which concern immigration into the EU and questions of internal security or justice have been entrusted to intergovernmental cooperation [5] between Member States. Therefore, any real progress on questions of entry into and free movement within the EU essentially follows from the foreseeable benefits and provisions provided in the Schengen Agreements. These regulate and set certain conditions on the free movement of persons. Sadly, today these agreements do not apply in all the Member States of the EU, although since the Treaty of Amsterdam (1997) they are now part of acquired "Community rights" (acquis communautaires). Nevertheless, strictly speaking they remain to be incorporated into Community law and confirmed by the appropriate instruments.

The situation in practice

Complex regulations act to the detriment of fundamental rights

The above explanation illustrates the complexity of handling questions of free movement of persons in the EU in the current state of European law. The legal framework is extremely unsatisfactory and scarcely reassuring. As from the advent of the single European internal market, within which the free movement of persons was to occur, the International Labour Office (ILO) had expressed concern about its lack of openness to non-EU nationals and about the risk that such persons might become marginalized in social and economic terms. The ILO organized consultations and round tables on the question for the European countries, notably a round table held in October 1990, the results of which were presented before the Centre for European Policy Studies in Brussels, on 7 November 1990, by Roger Zegers de Beijl, under the revealing title "Human resources in the EC: A wider perspective" (see Zegers de Beiji, 2000; Arrijn, Feld and Nayer, 1998; Castelain-Kinet et al., 1998). Such a state of affairs was unlikely to result in more European states ratifying the relevant Conventions of the United Nations and the ILO on the rights of migrant workers. [6] Today, the legal situation is no more encouraging. According to the ILO, maintaining 15 poorly coordinated national policies on foreign workers amounts to a waste of human resources which conflicts with the real aims of the European internal market. However, removing the regulatory obstacles to access to employment would not suffice to guarantee foreign workers' fair participation in the European labour market. In practice -- as shown in the ILO studies already mentioned -- migrant workers suffer discrimination which hinders their economic and social integration in the host countries. In the meantime, there has been an improvement in the law in this respect: since the Treaty of Amsterdam, the principle of non-discrimination on the grounds of (European) nationality has been extended to other grounds, notably race, age, sex, religion and personal conviction. On this legal basis, wh ich seems to open up prospects for a social Europe, the Council has already adopted two major Directives the effects of which benefit both EU nationals and all other nationals. [7]

Changes in perceived need

The question of geographical and labour mobility in Europe, as it was envisaged in the founding treaty, was one of the issues at stake right from the early days of the European Community. At that time, the problem was how to absorb the migrants from southern Europe who had been encouraged to come by the governments of northern …