Thirty years of free movement of workers in Europe


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Proceedings of the conference, Brussels, 17 to 19 December 1998
Labour market - free movement of workers
Social protection and social security
Fundamental rights


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Thirty years of free movement
of workers in Europe
Proceedings of the conference
Brussels, 17 to 19 December 1998
*■ >*
European Université catholique de Louvain
Commission Department of International Law Thirty years of free movement
of workers in Europe
Proceedings of the conference
Brussels, 17 to 19 December 1998
Edited by
Jean-Yves Carlier and Michel Verwilghen
European Commission Université catholique de Louvain
Diectorate-General for Department of International Law
Employment and Social Affairs
Unit D.4 The contents of this publication do not necessarily reflect the opinion or position of the European Commission,
Directorate-General for Employment and Social Affairs.
A great deal of additional information on the European Union is available on the Internet.
It can be accessed through the Europa server (
Cataloguing data can be found at the end of this publication.
Luxembourg: Office for Official Publications of the European Communities, 2000
ISBN 92-828-9799-0
© European Communities, 2000
Reproduction is authorised provided the source is acknowledged.
Printed in Belgium TABLE OF CONTENTS
Table of contents 3
Abbreviations - Citations 5
Jean-Yves CARLIER and Michel VERW1LGHEN
Foreword 7
Introduction 9
Part One
Introductory Reports
Freedom of movement for workers in Community lav), accomplishments and prospects 19
Francis G. JACOBS
Case law of the Court on free movement of workers 33
Proportionality and citize?isbip hi relation to the free movement of persons 41
Part Two
Committee 1: Who can be considered as a worker?
Christine DENYS
Summary report 63
The general concept of worker9
Tbc sponing side of Commtmity law 7
Freedom of movement in the public sector: developments and prospects 8
Committee 2: What rights do workers and their families have?
Marie-Ange MOREAU
Su?mnary report 107
Social rights of workers and citizens 115
Lucia Serena ROSSI
The taxation aspects of the free movement of persons 12
Pensions and social security 143 Committee 3: What right of residence?
Elspeth GUILD
Summary report 161
The right of residence in the context of freedom of movement in the community:
a questionable model5
Maria Luísa DUARTE
Righis of residence of community workers and derogations :
reflections on the meaning of "worker-citizen" 177
The right to remain of non-workers, including the right to remain for retired persons 19
Committee 4: What rights for third country nationals?
Summary report 203
The growing relevance of Article 39 (ex 48) EC Treaty for third country immigrants 207
Rudolf FEIK
Labour and social non-discrimination provisions within the Association agreements 225
The right of establishment and provision of services : Community employers
and third country nationals 241
Part Three
European Citizenship
Catherine WIHTOL de WENDEN
European citizenship and freedom of movement 253
European citizenship and freedom of movement in case law 26
Citizenship of the Union, national competence and Community competence 27
European Union and Union citizenship: umbrella terms? 281
Anders KRUSE
What will be the concrete meaning of citizenship? The Nordic experience7
Conclusions 293
Accord d'association A. Ass.
Association agreement Ass. Α.
Accord européen A.E.
affaire äff.
article art.
Cahiers de droit européen CD.E.
Traité instituant la Communauté européenne CE.
Communauté européenne du charbon et de l'acier C.E.C.A. é économique européenne C.E.E.
ou/or Central and Eastern Europe
Convention européenne de sauvegarde des droits de l'homme C.E.D.H.
et des libertés fondamentales
C.J.C.E. Cour de justice des Communautés européennes
Clunet Journal de droit international
CM LR Common Market Law Report
CML Rev. n Market Law Review
DG Direction générale ­ Directorate General
EA Europe agreements
EC Treaty establishing the European Community
ECHR European Convention for the Protection of Human Rights
and Fundamental Freedoms
ECJ European Court of Justice
ECR n Court Reports
ECSC European Coal and Steel Community
EEA n Economic Area
EEC European c Community
EEE Espace économique européen
EL Rev. European Law Review
EURES n Employment Services
EU European Union
J.O.C.E. Journal officiel des Communautés européennes
J.T.D.E. Journal des Tribunaux. Droit européen
OJ Officiai Journal of the European Communities
O.C.D.E. Organisation pour la coopération et le développement
OECD Organization for Economie Cooperation and Development
P· page
pt./pts. point/points
op. cit. opus citatum
PECO Pays d'Europe centrale et orientale
R.D.E. Revue du droit des étrangers (Belgique)
Ree. Recueil des arrêts de la Cour de justice des Communautés
européennes R.F.D. Adm. Revue française de droit administratif
R.M.C.e du Marché Commun
R.M.U.e du Marché Unique Européen
R.T.D.E.e trimestrielle de droit européen
Rev. March. Com. et de l'U.E. Revue du Marché commun et de l'Union européenne
TEU Treaty on European Union
T.U.E. Traité sur l'Union européenne
U.E.F.A. Union européenne de football association
v. versus
YEL Yearbook of European Law
References in the various presentations have been made as
consistent as possible.
References to the Treaty establishing the European Community
have been complicated by the new numbering introduced in the
consolidated version. This came into force on 1 May 1999 with the
Treaty of Amsterdam. However, the case law quoted here
necessarily refers to the previous numbering. With a view to the
future clarity and readability of these papers, we have used the
new numbering throughout, including the quotations. The former
number is included in brackets as follows: Article 39 (ex 48) EC.
As regards case law, references to judgments handed down by
the Court of Justice of the European Communities have also been
made consistent. The full names of the parties involved in each
case are given, as is the reference to its publication in the Repo?ts of
Cases before the Court of Justice and the Court of First Instance (ECR).
The reference to the Report is followed by a reference to
"CARLIER-VERWILGHEN, I, II or III" and a page number if the
judgment is included in CARLIER J.Y. AND VERWILGHEN M.,
Free Movement of Workers in the European Community, Casebook of
Judgments of the European Court of Justice, Brussels, Bruylant, 1998
(published in both English and French). These publications were
provided to conference participants and will help them readily to
look up both the English and French versions of the decisions. FOREWORD
This volume contains the proceedings of the European
conference held in Brussels from 17 to 19 December 1998 on the
subject of Thirty Years of Free Movement of Workers in Europe.
Why Thirty Years when Article 39 (ex 48) of the Treaty of Rome
already provided for the free movement of workers as early as
1957? Because this freedom did not actually come about until 15
October 1968, when two acts constituting the required secondary
legislation were passed. These were Regulation 1612/68 on
freedom of movement for workers, and Directive 68/360 on the
abolition of restrictions on movement and residence within the
Community for workers of Member States and their families.
Since then, new legislation and case law have expanded this right
from the free movement of workers to the free movement of
persons. Case law has played an important role, pushed forward by
the determination - even the stubbornness - workers and
individuals have shown to exercise their rights. Before the
Maastricht Treaty of 1992, such citizens performed a public
service. Is that not sufficient reason to identify them fully - first
and last name - when referring to court judgments? And why not
acknowledge, by giving the full name of the defendant, that it is not
only national, regional or local government bodies which are
impeding this freedom, but also social security authorities and
private groups?
Attempting to summarise here the various papers presented
would be doing them an injustice. They deserve to be read in full.
But there is a common thread running through the writers' papers
and the case law. The conflict between the interests of
individuals, who hope that the People's Europe will speak out on
their behalf, and those of bodies wishing to protect themselves
behind national borders is a constant concern. The issue is not
new. To paraphrase Jean Monnet, we must decide whether we are
creating a coalition of nations or uniting people. The latter seems to
be prevailing, in word if not in deed. It is the more attractive
option since it is more human, and follows the growing, present-
day emphasis on eponymous rights. We should never forget that human beings are the ultimate reason for all economic and political
action. Nor should we overlook the means required to implement
this human progress and the extent of what has been accomplished.
As far as the means are concerned, building up the European
Union need not be to the detriment of the Member States. It could
well be achieved in cooperation with them. As for the extent,
neither the passive ignorance nor the active arrogance of the
people who live inside or outside Europe's borders are necessarily
the best foundation for European citizenship.
Free movement is the very symbol of Europe, and progress is
being maintained slowly at times, more quickly at others. What is
thirty years in the history of our continent? After such a brief
span, the results achieved through free movement of workers are
not insignificant. A pause for thought was needed, before forging
ahead with renewed impetus.
This pause is also a time to pay homage. One cannot move
forward without someone to provide guidance or slow things down
when necessary. One person took on this leadership role at the
European Commission: her name is Annette E. Bosscher, Head of
Division at DG V. As Odile Quintin points out, she is "behind
freedom of movement and social security for migrant workers".
Today, although now retired, she stands before us to invite us to
continue along that path. The dedicated and professional members
of the European Commission and of the Department of
International Law at the Université catholique de Louvain have
been doing just that. Their unstinting efforts in preparing this
conference and this publication has enhanced the work of the
speakers. We would like to express our thanks to them all. We
hope that the esteem in which we hold Ms Bosscher and the desire
we have to pursue this ever closer union between peoples shines
through every line.
Professor at U.C.L. Professor at U.C.L.