Regulation 492/2011 on Freedom of Movement for Workers within the Union

Regulation 492/2011^[1] is a codification of Regulation 1612/68^[2] due to the substantial amendments that were made over the years.^[3] This regulation has been created to assist in providing free movement to workers within the Union.

Background

This Regulation^[4] was created to codify the previous regulation,^[5] so as to avoid confusion. It was also created to help promote migration. Migration between the original member states was considerably lower than migration from Eastern European countries.^[6] To try and combat this issue and to try and promote migration, the Union created a number of measures, most notably Regulation 492/2011,^[7] which gives rights to workers and their families when they migrate to a member state. This Regulation simply reiterates what is stated under article 45 Treaty on the Functioning of the European Union (TFEU).^[8] However it also adds specific actions which cannot be taken by a member state.^[9]

Main Aim

The main aim of this legislation was to provide workers and their families with additional rights which would allow for the objectives laid down in Articles 45^[10] and 46^[11] of the TFEU to be achieved. It is there to facilitate the free movement of workers and their families but also to ensure that the worker and their family integrate into the host member state.^[12]

What were the changes?

This Regulation has assisted with three main issues; EU citizens having access to employment with no discrimination,^[13]EU citizens receiving equal treatment during employment within a host member state^[14] and providing the families of workers with rights.^[15]

Issue one- Access to employment

Articles 1-6 of the Regulation 492/2011^[16] provide that a non-national should have the same access to employment as a national of a member state and aim to remove any discrimination, whether direct or indirect.

A directly discriminatory measure is one whereby a migrant worker is treated less favourably than a national of the member state.^[17] For example there was a law discussed in Commission v Italy^[18]which stated that private security work could only be undertaken by Italian nationals employed by Italian security firms. This was a direct breach of union law as it prevented any non-Italian nationals from doing private security work. Article 3(1) of the Regulation^[19] provides further examples of what constitutes direct discrimination. This includes any law, regulation or administrative action/practices which are undertaken by the Member state which limits the access to employment for a non national by subjecting them to conditions that do not apply to their own nationals. National provisions will also not apply if the primary aim is to prevent nationals from other member states from the employment offered.^[20]This is a direct breach of Article 45 TFEU.^[21] These practices by the Member state can only be continued if it falls within the express derogations.

This Regulation also attempts to eliminate any indirect discrimination which could exist within the practices of the member state. This covers a broad range of provisions which includes a non national being required to provide a period of service or residence within the host state before they receive a particular benefit. This links to the second issue being tackled by this Regulation.

Issue 2 – Right to equal treatment during employment

The main Article in relation to this is Article 7.^[22] Article 7(1) provides that a non-national will not be treated differently from a national in respect of any conditions of employment.^[23]  Article 7(2) then provides that a migrant worker is to have the same entitlement to social and tax advantages as national workers.^[24] However, the current definition within 207/78 Even^[25]is very broad and could allow any social or tax advantage to fall within the definition. Finally Article 7(3) provides that there should be equal access to vocational courses^[26] but this is only if it is to prepare the individual for a particular occupation and not simply for a person to improve their general knowledge.^[27]

Articles 8 and 9^[28] also assist in dealing with this issue as they relate to the rights of Trade Unions and the rights to housing.

Issue three- The rights of family members

Article 10 of the Regulation^[29] provides that family members of the workers have the same right to access education as nationals of the member state and the host state is not to discriminate against any person based on their nationality.

Therefore, Regulation 492/2011^[30] assists in making sure those workers and their family who migrate to another member state, receive the same treatment in relation to their access to employment and their treatment during employment within the host member state as a national would receive.