FREE MOVEMENT OF WORKERS IN THE EUROPEAN UNION: THE EXEMPTION OF EMPLOYMENT IN THE PUBLIC SERVICE

Algis Junevičius

Abstract


Since the foundation of the European Community the content of free movement of workers and the sphere of its application have been constantly expanding along with the implementation of new regulations providing more and more rights for foreign employees. The first step in eliminating restrictions on free movement for workers was made in 1961 which marked the adoption of the Regulation of EEC No 15/61. It allowed six countries within the Community to continue the policy of favouring nationals in the public sector employment process. Only in case of failure to find the right employee for a position during a certain period of time permitted employment of a national from any other Member State without additional limitations. Still more freedom in the process of employing foreigners was allowed under the Regulation (EEC) No 38/64. It has eliminated any employment priority rights of Member State workers over immigrants. Actually, free movement was allowed with the aim to pursue employment after receiving a concrete job offer from a Member State. Workers were still deprived of the right to take their own initiative to migrate in order to pursue employment within the territory of a foreign Member State. Factual limitations were still able to restrict the migrant workers of certain professions wishing to seek jobs in different economy sectors. The final step in completely attaining the freedom of the labour market was made in 1968 with the adoption of the Regulation (EEC) No 1612/68 under which all the workers within the EU were secured the right of free movement without any restrictions as to the job offer.

The main legal norm ensuring free movement of workers is asserted under the Treaty on the Functioning of the EU which regulates movement of workers within the labour market. This provision is of direct application since it provides citizens with the right to refer to this article at the national court. The criterion to apply this Treaty is presence of labour relations irrespective of their legal nature or objectives. Secondary legal acts elaborate on the articles of the Treaty but cannot extend the sphere of its application. Provisions of the Treaty are of the highest legal power which means that secondary law is always derived from the primary law, therefore, can be always amended or abolished if it contradicts the fundamental principles of the Treaty. Moreover, an individual wishing to directly exercise the rights of an EU citizen must own a citizenship of the EU Member State.

Nevertheless, the provisions of the Treaty apply only to those activities of the national subjects that are related to crossing the boarder of one of the Member States and coming to work on the territory of another one. In other words, the EU Acts on free movement cannot be applied to those workers who never exercise the right to freely move as employees within the territory of the EU. Besides, the right to free movement is not limitless and those exercising it have to commit to certain liabilities, i.e. to comply with the laws of the hosting state. The Treaty provides national authorities with the right to apply restrictions to free movement of workers, justified by such imperatives as public order, community safety or health as well as by restrictions to be employed in the public services.

DOI: http://dx.doi.org/10.5755/j01.eis.0.6.1697


Keywords


free movement of workers; the public sector; employment in the public service; exercise of powers conferred by public law; protection of state interests

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Print ISSN: 1822-8402
Online ISSN: 2335-8831