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6.4.1.  The labour market of the EU

    The EEC Treaty had the objective, as regards workers, of creating a common labour market, which meant the free movement of labour within the Community and the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Under Article 45 of the Treaty on the functioning of the EU (ex Article 39 TEC), freedom of movement of workers entails the right, subject to limitations justified on grounds of public policy, public security or public health to accept offers of employment actually made, to move freely within the territory of Member States for this purpose, to stay in a Member State for the purpose of employment and to remain in the territory of that Member State after having been employed in it. The Community legislation that materialised those principles was completed in 1968 and, thus, freedom of movement of workers was achieved, from the legal point of view, at the same time as customs union. This freedom was extended to all the workers in the European Economic Area in 1994 [see section 25.1].

    Nowadays, all persons residing legally in a Member State have equal rights of movement and residence in the other States of the Union [see sections 6.5.1 and 9.2]. Therefore, a Directive and a Regulation replaced a range of complex legislation relating to different categories of beneficiaries, including salaried and non salaried workers [Directive 2004/38 and Regulation 492/2011]. For periods of residence of longer than three months, Member States may only require Union citizens to register with the competent authorities in the place of residence. The worker can continue to reside, in the country in which he or she has settled after the termination of his or her employment. In fact, the worker and his or her family members who have resided in a host Member State during a continuous period of five years have a right of permanent residence in that State. The members of the family enjoy the right of residence even after the worker's death.

    A connected Directive lays down provisions which facilitate the uniform application and enforcement in practice of the rights conferred by Regulation 492/2011, concerning the following matters in the area of freedom of movement for workers: access to employment; conditions of employment and work, in particular as regards remuneration, dismissal, health and safety at work, and, if Union workers become unemployed, reinstatement or re-employment; access to social and tax advantages; membership of trade unions and eligibility for workers' representative bodies; access to training; access to housing; access to education, apprenticeship and vocational training for the children of Union workers; and assistance afforded by the employment offices [Directive 2014/54].

    A directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, provided in Article 19 of the Treaty on the functioning of the EU (ex Article 13 TEC), seeks to prohibit discrimination throughout the European Union in different areas such as employment, education, social security, health care and access to goods and services [Directive 2000/43]. It defines the concepts of direct and indirect discrimination, gives right of redress to victims of discrimination, imposes an obligation on the employer to prove that the principle of equal treatment has not been breached, and offers protection against harassment and victimisation in all the Member States.

    The EC/EU has set up a general framework for combating discrimination on grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment [Directive 2000/78]. This prohibition of discrimination applies also to nationals of third countries but does not cover differences of treatment based on nationality, race or ethnic origin, because Directive 2000/43 already provides protection against such discrimination in the field of employment and occupation. An important body of European law prohibits discrimination against women as regards access to employment, vocational training and promotion, and working conditions [see section 13.5.5].

    Public statements by an employer to the effect that he will not recruit people of a certain racial or ethnic origin constitute direct discrimination in the sense of Directive 2000/43 [See case C-54/07]. The Court of Justice has consistently held that the rules on equal treatment prohibit not only overt discrimination but also any form of concealed discrimination, which is based on various distinction criteria but has the same effect [Case 65/81 and Case 137/84]. However, discrimination exists only where different rules are applied to comparable situations or the same rule is applied to different situations. For instance, where direct taxes are concerned, the Court has ruled that the provisions of the free movement of workers do not in principle preclude the application of national rules under which a non-resident working as an employed person in a Member State is taxed more heavily on his income than a resident in the same employment [Case C-279/93]. Sickness cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination [Case C-13/05].

    The principle of the free movement of workers applies equally to nationals of third countries, who stay lawfully in a Member State. Indeed, according to a Judgment of the Court of Justice, a firm established in a member country, which employs lawfully and habitually non-member country nationals, may detach them in another Member State in order to provide services [Case C-43/93]. The principle of free movement applies also to all cases of posting of workers taking place in the framework of a transnational provision of services. Thus, workers posted to another Member State by their employers enjoy at least the terms and conditions compulsory in the host Member State [Directive 96/71, last amended by Directive 2014/67].

    Article 45 § 4 of the TFEU (ex Article 39.4 TEC) excludes employment in the national public service from the principle of the free movement of workers. However, according to the Commission and the Court of Justice, this exception from the general principle of free movement does not concern jobs, which, even if they are funded by the State, are not public service as such, e.g. bodies responsible for administering commercial services, public health care services, teaching in State educational establishments and research for non-military purposes in public establishments [See Case C-187/96]. Moreover, according to the Court of Justice, given the fundamental character of the principles of free movement and of equal treatment, the derogations based on Article 39.4 (new Article 45 § 4 TFEU) should not exceed the aims of this exception to the rule [Case 152/73] and should not contravene the principle of non-discrimination [Case C-187/96].

    The principle of free movement of workers cannot be hindered by the rules of sports associations. In the Bosman judgment, which revolutionised European sport customs, the Court of Justice held, indeed, that Article 48 EEC (Article 45 TFEU) applied to the collective rules adopted by private sports associations since the exercise of sport as an economic activity was covered by European law [Case C-415/93]. In particular, the Court held that by preventing or deterring nationals of a Member State from leaving their country of origin the transfer rules constituted an obstacle to the free movement of workers. According to the Court, the rules in question are not likely to provide encouragement and financing for small clubs training young players, since there was no guarantee that they would collect such fees and since the amount of the fees bore no relation to the costs actually incurred for the training. The Court also held that under Article 48 of the EEC treaty no rules could require clubs to field, for a given match, only a limited number of professional players who were nationals of other Member States, but it admitted that the nationality requirement was justified in the case of matches between the national teams of different countries.

    However, the Court judgment did not definitely solve the question of the free movement of football and other players [see section 13.4.1]. In fact, following complaints by European football associations, the Commission had initiated proceedings in 1999 on the grounds that the International Federation of Football Associations (FIFA) rules were illegal because they denied players the right to negotiate the termination of their contract. The Commission's aim was to strike a balance between the players' fundamental right to free movement and the equally legitimate objective of the integrity of the sport and the stability of the championships. Following discussions between FIFA and the Commission, FIFA's Executive Committee drew up satisfactory rules and application regulations, which were adopted in Buenos Aires on 5 July 2001.

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