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European Union is not a permanent law-making body, rather it is an association of European countries (approximately 27) that have agreed together on some particular matters. The formation of law that is applied on the European Union is being agreed upon by the member states and the member states decides whether the law shall be made by the national governments independently or the European Union or both. There are some matters in which the European Union is free to act and make laws but this freedom of the EU depends on three main principles. These principles are conferral where the European Union only has limited authority that has been ratified by the member states. The second principle is that of proportionality where the European Union cannot do any act that is beyond the objectives of the treaties signed by the member states. And the last is subsidiarity where the European Union or the national government of the European countries has the freedom to make the laws and the European Union can intervene in the matters of the domestic laws if the decision of the EU is more effective. Further, there are certain areas of law where only the European Union has the power to make laws and there is no interference of the domestic government of the member states. The member states can only interfere if the European Union has authorised them to act and make laws for the local region. These areas of the European Laws are called exclusive competencies.
The presented essay has chosen the area of free movement of workers under the European law for which only the European Union is authorised to pass laws. Examples of some other areas are the laws relating to the customs union, the rules of competition, rules relating to monetary policy, laws relating to international trade and regulation of the marine plants and animals.
Free movement of workers under the European Union law
The principle that provides for the free movement of workers under the EU law provides under the provision of Article 45 of the Treaty on the Functioning of the European Union also known as the TFEU. This rule provides for the elimination of discrimination of the workers based on their nationality, their employment and their remuneration and includes the elimination of discrimination based on all the working and employment conditions. As the fulfilment of the objective of the European Union that provides for the removal of birders within the European countries for the people of Europe, the provision has provided that there shall be no limitation on the movement of people and the people shall have the right to accept the offers of employment from other European states. Though this movement is not absolute the limitation imposed is a reasonable one where it is provided that the movement of people and workers shall be subjected to limitations based on public policy, public health and public security. Article 45 of the TFEU agreement is read as follows:
“The Union shall secure the freedom of the workers to move within Europe.
Such movement of the workers shall be done in such a manner that there shall be no discrimination of the workers based on nationality and also there shall be no discrimination of the workers regarding employment, working conditions, payment and remuneration.
The free movement of people shall give the workers the following rights and restrictions shall only be imposed on the ground of public health and policies.
Right to accept the employment offer made to them.
Right to move freely within the territory of member states for this purpose.
The right to reside in the member state for employment and work as per the rules and regulations laid down by the national government in respect of employment in that state.
The right to reside in the territory of the member state after being getting employed as per the regulations and rules governing employment in that territory.”
The primary legislation that provides for the free movement of people and workers under the European Union is the one mentioned above that is Article 45 of the TFEU and it is applied only to those who are seeking jobs or are already employed. In the year 1993, there was the enactment of the Maastricht Treaty which was the first enacted set of rules for the free movement of people. This treaty under the provision of Articles 20 and 21 stated that the people of Europe and their families shall be allowed to move freely in the European countries and also allowed to reside within the member states of the European Union. The provision not only provides for the free movement and settlement of the people and their families but also provided for the right to cast a vote which is a political right and also to stand in the election for municipal and European Parliament.
Further, there is also secondary legislation that is enacted by the European Union in this area of law that is in the form of regulations and named as Directive 2004/38/EC providing for the right of citizens and their family members of the Union to move and reside freely within the territory of the member states. Further, there is also another legislation named the EU Regulation 492/2011that provides for the rights of the workers and their families to move free and reside in the countries of Europe. Hence, it can be stated that all the people in Europe have the right to move and reside along with their family members in any part of Europe. Moreover, the right also includes the elimination of discrimination on any ground regarding nationality that is in respect of employment, working conditions, tax and social advantage, training, access of housing, access of education and many more.
Apart from the provisions enshrined under TFEU, other agreements provide for the free movement of people within the European countries and these rules also form part of the legislation as these rules are binding on the member states. Examples of the other agreements are the European Economic Area (EEA) and the Agreement on Free Movement of Person (AFMP). Though there is no substantive right under these agreements there was the adoption of a directive named Directive 2014/54/EU that was adopted for the facilitation of the free movement of people along with their family members. Article 4 under this Directive provides for this provision and read as follows-
"There shall be the establishment of bodies and structures by each member state which shall promote, analyse, monitor and support for the equal treatment of the workers and their families and also protect them from discrimination on the ground of nationality and shall also make the required necessary arrangement for the working and functioning of all such bodies and structures.”
Fulfilment of objectives of the European Union
One of the four freedoms that are being enjoyed by the citizens of the European Union is the freedom of movement and the freedom of residing in the European country. Hence, the European Union provides for such legislation that provides equal treatment to the workers and restrictions and limitations are only imposed on reasonable grounds. The European Union has the first objective of making a common European area that is without borders. By setting this objective, the European Union has made clear the intention for which such an objective has been set. The intention of the European Union for making this objective is to ease the movement of its citizens from one country to another. Hence, the people of Europe are having the freedom of moving from one country to another where they shall not be subjected to restrictions apart from those relating to public health and public security. The European Union intends to set up a common region for the citizens which shall be free from internal boundaries and the citizens of the region shall enjoy the rights being granted by the European Union.
As per the Eurostat of the year 2019, among the citizens of the European Union between the age 20 to 64 years 3.3% of the people resided in a European Country which was different from their citizenship. The legislation that is TFEU fulfils the objective of the European Union as it provides for the right of the workers to move and reside freely. The agreement as provided above provides for the free movement of the people and workers and hence, it has satisfactorily fulfilled the objective of the European Union. Further, under the agreement, it is only required that the worker who is moving for residence in another country shall only be required to carry a valid identity card and a passport and no other formality shall be required. This makes it clear that the agreement has not imposed any hard and rigid restriction or formality for this movement of people and hence, the objective of the European Union is being fulfilled satisfactorily.
The next objective of the European Union is to establish an internal market within the territory and the legislation TFEU ensures for the fulfilment of this objective. The justification for the statement can be seen in the aim and objective of the TFEU agreement. The European Union has the objective of establishing an internal market for the employers and employees and workers of the European Union and for this purpose the Union has established smooth and efficient trade practices among the competitors. Moreover, the TFEU agreement has a Preamble along with the enacted legislation that provides and states social and economic progress of the states and its citizens by taking the necessary actions that eliminate the barriers between the nations and also eliminate the barriers that are dividing Europe. Hence, the TFEU has an objective of uniting Europe in terms of boundaries and remove all the internal boundaries so that the movement of people, as well as commodities, can be easy and convenient.
Further, the TFEU agreement in its Preamble also states that the agreement has been formed between the nations so that necessary actions can be taken to improve the working condition of the workers and their families. Hence, the agreement has been enacted to ensure that the workers have good opportunities to work in European countries and that they can move and reside freely. The Preamble of the TFEU agreement has also provided that the agreeing member states are recognising the removal of all the barriers and obstacles which come in between free trade and fair competition. Hence, the free trade and movement of commodities and people is also been enacted as ab objective of the agreement as provided in the Preamble.
Moreover, there is another objective seen of the European Union which states that the Union shall work to prevent exclusion of the workers and the people. Hence, the TFEU agreement that has provided for the free movement of the workers has fulfilled this objective as utilizing this agreement, the workers can be engaged in employment and they shall not be excluded from the society. They shall have the right to move and reside freely in any European territory and shall be within the European society not excluded.
Legal enforcement of Article 45 TFEU
As already discussed above, the most important legislation in respect of the free movement of workers in Europe is the Treaty on the Functioning of the European Union (TFEU). Article 45 of the TFEU agreement provides for the free movement of workers and people along with their family members for employment and work in European nations. But there have been cases where the right under Article 45 of the TFEU agreement have been violated. Hence, at this stage, the infringement procedure of the agreement is being applied and the right is enforced by the European Commission. The infringement procedure consists of many stages that have been provided under Article 258 of the TFEU agreement. The court of justice of Europe has stated in this respect that the European Commission has discretionary powers in this area. If any of the member states are seen violating or infringing any of the provisions of the agreement, the member's state is required to take the necessary action that shall be required to comply with the judgment of the European court of justice.
Further, the court at this stage is also authorised to pass interim orders to the member's states and command them to stop the act or enforce the act. Reference of the case Commission v. Italy and Commission v. Malta can be taken where the court of justice passed an interim order against the member state to stop the hunting activities. Another reference of the case Commission v. Belgium Case where it was held by the court that the member state should allow the workers to remain in their territory without restriction if the worker is a job seeker and such stay should be of a reasonable time and the court also stated that the time that shall be reasonable shall be three months. Further, it has been stated that the passing of interim order is an effective way of restricting the member's state from doing any activity but the order shall only be passed in urgent and serious cases. Another reference of the case Union Royale Belge des Sociétés de Football Association ASBL v. Bosman where it was held by the court that the employers must be reasonable in determining the working conditions of the workers.
Another consideration in this respect is that if any of the members' states do not comply with the order passed by the European court of justice, the commission shall have the authority to take required action against the member state as per the provision of Article 260 of the TFEU agreement. In case the dispute has been brought before the European court of justice, and it is observed that the members' state has failed to comply with the order of the court, the court may further impose a penalty over the member state which may be in the form of a monetary fine or other forms of penalty.
Hence, it can be observed that the enforcement of the Articles of TFEU that is concerning the free movement of workers and people in the European territory can be enforced in the court and the member state that is seen violating the provisions of the agreement are subjected to fines and penalties. Thus, the members' states must abide by the agreed provisions of the agreement to avoid penalties and fines. The court of justice and the European Commission has the right to enforce the provisions of the Articles under the TFEU agreement and the member states are not at the freedom of refusing to act for what they have initially agreed.
Thus, to conclude it can be stated that the presented essay has been drafted on the European Union law on the free movement of workers where there has been discussion done regarding the legislation that provides for the free movement of workers. As identified, the most important one is the TFEU agreement that has been agreed by the European nations to allow free and fair movement of workers along with their families. Further, there has also been discussion regarding how the agreement fulfils and satisfies the objectives of the European Union as the Union has the main objective of eliminating the internal boundaries. Lastly, the essay has discussed the enforcement action that is being taken against the member states in case they violate the provisions of the agreement which is in form of fines and penalties.
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