Despite public debate regarding EU citizens working in different Member States (“EU workers”), the Council and European Parliament have agreed on new legislation concerning this topic. Recently approved by the European Parliament, the new Directive focuses on enforcing existing rules against discrimination toward EU workers and will likely be adopted by the Council soon. Member States are given two years to implement this Directive.
The Directive itself doesn’t modify existing rights related to EU worker free movement, but instead, clarifies the enforcement and application of rights granted by Article 45 TFEU and Regulation 492/2011. This might explain why Member States typically hesitant about free movement, such as the UK, haven’t opposed it.
This Directive covers access to employment, working conditions, social advantages, trade unions, training, housing, and children’s education for EU workers. Importantly, it doesn’t include family reunion or apply to EU citizens in general.
Regarding enforcement, the Directive mandates that Member States provide judicial procedures for upholding these rights. It also compels them to allow associations, organizations, or legal entities to participate in legal proceedings, either supporting or representing the worker and their family. However, this shouldn’t affect national rules on time limits unless they make applying EU law practically impossible or overly difficult. Legal aid is not mentioned.
Furthermore, Member States must designate an entity, potentially an existing equality body, to champion equal treatment and eliminate non-discriminatory barriers to free movement for EU workers and their families. These bodies should be able to offer free legal advice or assistance, conduct independent surveys, publish independent reports, and share relevant information. Dialogue with relevant actors at the national level is also encouraged. Lastly, Member States must disseminate information concerning EU worker free movement.
Comments
This Directive clearly takes inspiration from EU legislation on gender and racial equality. However, compared to those, it lacks provisions for compensation (unlike the gender equality law) and burden of proof. So, while it allows court access, certain litigation aspects, such as evidence rules and concrete remedies, are unaddressed. It surpasses the general framework employment equality Directive in some ways (lacking rules on equality bodies) but falls short in others (the framework Directive includes rules on the burden of proof). The absence of a general legal aid rule may also hinder some workers from accessing courts unless they receive support from an equality body. However, these bodies likely won’t have substantial funds for litigation.
Drawing a parallel with other equality laws suggests a move to reframe the conversation—implicitly placing discrimination against EU workers on par with discrimination based on gender, race, etc., which are largely considered socially unacceptable. While existing EU legislation on these issues somewhat mirrors public opinion, this new Directive might be pushing against the current, at least in some Member States. Only time will tell if an equality Directive can be effective when it contradicts the prevailing political climate.
Undeniably, the new Directive will simplify the enforcement of EU workers’ rights, which is a positive development. However, one might question why the Directive doesn’t encompass EU citizens more broadly, particularly concerning the admission of workers’ family members. For many years, EU law has trended towards a comprehensive EU citizenship model, moving away from categorizing citizens based on their activities, although EU citizens engaged in economic activities are admittedly somewhat privileged under the EU citizens’ Directive. In light of this, the additional relative privilege this Directive grants to workers seems like a step backward.
One might also wonder why, given that the free movement of workers has been a guaranteed principle since 1968, it took the EU Commission so long to propose this legislation. Surely the challenges in enforcing EU worker rights haven’t only emerged in recent years? At the very least, why wasn’t this matter addressed when the EU established the current comprehensive legislative framework on equality rights over a decade ago?
Finally, because the new Directive borrows from other equality Directives, relevant case law could be applicable by analogy. This could be significant, considering that open hostility towards EU workers has become more prevalent than prejudice based on gender, race, religion, etc., in certain Member States. For example, in the Feryn judgment, the CJEU ruled that an employer’s advertisement refusing to hire ethnic minorities violated the race equality Directive. How would they now judge a British Prime Minister declaring “British jobs for British workers”?
[Update: in December 2018, the Commission issued a report on how EU Member States are applying this law].
Barnard & Peers: chapter 13