The Treaty of Paris (1951)4 establishing the European Coal and Steel Community established a right to free movement for workers in these industries, and the Treaty of Rome (1957)5 provided a right for the free movement of workers within the European Economic Community, to be implemented within 12 years from the date of entry into force of the treaty. The first step towards realizing the free movement of workers was the Council Regulation no. 15 of 1961,6 which entered into force on 1 September 1961. It gave the nationals of the member states the right to take up employment in another member state provided that there were no nationals of that member state available for the job.7 The regulation was superseded by another regulation on 1 May 1964, which further extended the right of workers to take up employment in another member state.8 However, it was not until 8 November 1968, when regulation (EEC) no 1612/68 entered into force, that free movement of workers was fully implemented within the Communities.9 Through this regulation, the original article 49 of the EEC treaty was implemented, and all nationals of the member states obtained the right to take up employment in another member state on the same conditions as the nationals of that particular member state.10 The free movement of workers was thus implemented before the twelve-year period stipulated in the EEC treaty had expired. On 16 June 2011, this regulation was replaced by the Free Movement of Workers Regulation 2011. At the time free movement of workers was implemented within the European Communities, the corresponding right already existed within the Benelux (since 1960) and between the Nordic countries (since 1954) through separate international treaties and conventions.
The Directive 2004/38/EC on the right to move and reside freely assembles the different aspects of the right of movement in one document, replacing inter alia the directive 1968/360/EEC. It also clarifies procedural issues, and it strengthens the rights of family members of European citizens using the freedom of movement. According to the official site of the European Parliament, the explanation of the freedom of movement goes as follows:
Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship, which was established by the Treaty of Maastricht in 1992. Its practical implementation in EU law, however, has not been straightforward. It first involved the gradual phasing out, of internal borders under the Schengen agreements, initially in just a handful of Member States. Today, the provisions governing the free movement of persons are laid down in Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States. However, the implementation of this directive continues to face many obstacles.11
The meaning of 'worker' is a matter of European Union law.12 "The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."13
The right to free movement applies where the legal relationship of employment is entered into in or shall take effect within the territory of the European Community.2122 The precise legal scope of the right to free movement for workers has been shaped by the European Court of Justice and by directives and regulations. Underlying these developments is a tension "between the image of the Community worker as a mobile unit of production, contributing to the creation of a single market and to the economic prosperity of Europe" and the "image of the worker as a human being, exercising a personal right to live in another country and to take up employment there without discrimination, to improve the standard of living of his or her family".23
In the Treaty of Accession 2003, the Treaty of Accession 2005, and the Treaty of Accession 2011, there is a clause about a transition period before workers from the new member states can be employed on an equal, non-discriminatory terms in the old member states. The old member states have the right to impose such transitional period for 2 years, then to decide to extend it for additional 3 years, and then, if there is serious proof that labour from new member states would be disruptive to the market in the old member states then the period can be extended for the last time for 2 more years.24
According to the principle of reciprocity, new member states have the right to impose restrictions for all the countries that introduced restrictions and transitional periods to their citizens. Croatia has decided to apply this rule.25
The United Kingdom formally left the EU on 31 January 2020, following on a public vote held in June 2016.26 However a transition period to give time to negotiate a trade deal between the UK and the EU was in place in the interim. The EU–UK Trade and Cooperation Agreement (TCA) was concluded on 24 December 2020.
On 1 January 2021 free movement of persons between the parties ended as it is not incorporated in the TCA or the Brexit withdrawal agreement.
The citizens of the member states of the European Economic Area (which includes the EU) have the same right of freedom of movement in the EEA as EU citizens do within the Union.27 Additionally, the European Union, its member states, and Switzerland have concluded a multilateral agreement with the same meaning.28 The EEA member states outside the EU (Norway, Iceland and Liechtenstein) and Switzerland are treated as "old member states" in regard to the Treaty of Accession of the new EU members, so they can impose such 2+3+2 transitional periods.
Switzerland initially granted freedom of movement to EEA citizens from 2005 to 2011. It briefly reimposed restrictions in 2012–2013, but lifted them again in 2014. A 2014 Referendum directed the Swiss government to impose permanent quotas on residence/work permits for citizens of all EEA countries except Liechtenstein, starting from 2017 at the latest.293031 However, on 22 December 2016, Switzerland and the EU concluded an agreement that a new Swiss law (in response to the referendum) may require Swiss employers to give priority to Swiss-based job seekers (Swiss nationals and foreigners registered in Swiss job agencies) but does not limit the free movement of EU workers to Switzerland.32
Liechtenstein was originally allowed by Protocol 15 of the EEA Agreement to limit free movement of persons from other EEA states until 1 January 199833 and then the measure was subjected to a review which concluded in a declaration by the EEA Council34 that allowed Liechtenstein to indefinitely limit free movement of persons from other EEA states pursuant to Article 112 of the EEA Agreement. Liechtenstein imposes quotas for all EEA citizens (issuing 56 residence permits per year)3536 and a separate quota for Swiss citizens (a further 12 residence permits per year).37
Treaty of Rome Archived 16 November 2013 at the Wayback Machine (consolidated version). EUR-Lex http://eur-lex.europa.eu/en/treaties/dat/12002E/htm/C_2002325EN.003301.html ↩
Bosman ruling, 15 December 1995, C-415/93, ECLI:EU:C:1995:463 /wiki/Bosman_ruling ↩
Angonese v Cassa di Risparmio di Bolzano SpA6 June 2000, C-281/98ECLI:EU:C:2000:296 /wiki/Angonese_v_Cassa_di_Risparmio_di_Bolzano_SpA ↩
Article 69 Archived 23 October 2021 at the Wayback Machine part of Treaty establishing the European Economic Community (Rome, 25 March 1957) on CVCE website. http://www.cvce.eu/obj/treaty_establishing_the_european_coal_and_steel_community_paris_18_april_1951-en-11a21305-941e-49d7-a171-ed5be548cd58.html ↩
Title 3 Archived 4 November 2013 at the Wayback Machine part of Treaty establishing the European Economic Community (Rome, 25 March 1957) on CVCE website. http://www.cvce.eu/obj/treaty_establishing_the_european_economic_community_rome_25_march_1957-en-cca6ba28-0bf3-4ce6-8a76-6b0b3252696e.html ↩
Règlement n° 15 relatif aux première s mesures pour la réalisation de la libre circulation des travailleurs à l'intérieur de la Communauté https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31961R0015 ↩
[Article 1 of regulation 15] ↩
Règlement n° 38/64/CEE du Conseil du 25 mars 1964 relatif à la libre circulation des travailleurs à l'intérieur de la Communauté https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31964R0038 ↩
Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31968R1612 ↩
Article 1 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31968R1612 ↩
"Free movement of persons". Europarl.europa.eu. Archived from the original on 22 December 2015. Retrieved 17 February 2016. http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_2.1.3.html ↩
Judgment of the Court of 19 March 1964. Mrs M.K.H. Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (Administration of the Industrial Board for Retail Trades and Businesses) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61963CJ0075 ↩
Judgment of the Court of 3 July 1986. Deborah Lawrie-Blum v Land Baden-Württemberg. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61985CJ0066 ↩
Judgment of the Court of 23 March 1982. D.M. Levin v Staatssecretaris van Justitie https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61981CJ0053 ↩
Judgment of the Court of 31 May 1989. I. Bettray v Staatssecretaris van Justitie https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0344 ↩
Judgment of the Court of 26 February 1992. V. J. M. Raulin v Minister van Onderwijs en Wetenschappen https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61989CJ0357 ↩
Judgment of the Court of 3 June 1986. R. H. Kempf v Staatssecretaris van Justitie https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61985CJ0139 ↩
Judgment of the Court (Sixth Chamber) of 5 October 1988. Udo Steymann v Staatssecretaris van Justitie https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0196 ↩
Judgment of the Court of 12 December 1974. B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61974CJ0036 ↩
See also Judgment of the Court of 30 April 1996. Ingrid Boukhalfa v Bundesrepublik Deutschland https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61994CJ0214 ↩
P. Craig and G. de Búrca, EU Law: Text, Cases and Materials, 3rd edition, OUP, 2003 p. 701 ↩
European Commission. "FAQ on the Commission's free movement of workers report". Archived from the original on 6 July 2007. Retrieved 28 July 2010. http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/06/64&format=HTML&aged=0&language=EN&guiLanguage=en ↩
"Croatia – Employment, Social Affairs & Inclusion – European Commission". European Commission. Archived from the original on 14 December 2013. Retrieved 8 June 2015. http://ec.europa.eu/social/main.jsp?catId=1067&langId=en ↩
Hunt, Alex; Wheeler, Brian (3 November 2016). "Brexit: All you need to know about the UK leaving the EU". BBC News. Archived from the original on 22 May 2015. Retrieved 23 January 2021. https://www.bbc.co.uk/news/uk-politics-32810887 ↩
Decision of the EEA Joint Committee No 158/2007 of 7 December 2007 amending Annex V (Free movement of workers) and Annex VIII (Right of establishment) to the EEA Agreement https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22007D0158 ↩
Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons - Final Act - Joint Declarations - Information relating to the entry into force of the seven Agreements with the Swiss Confederation in the sectors free movement of persons, air and land transport, public procurement, scientific and technological cooperation, mutual recognition in relation to conformity assessment, and trade in agricultural products https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22002A0430(01) ↩
"Free movement of persons". Directorate for European Affairs. Bern: Federal Department of Foreign Affairs. May 2014. Archived from the original on 15 December 2014. Retrieved 6 June 2014. https://www.eda.admin.ch/dea/en/home/bilaterale-abkommen/ueberblick/personenfreizuegigkeit.html ↩
"Free Movement of Persons Switzerland – EU/EFTA". Federal Office for Migration. Bern: Federal Department of Justice and Police. May 2014. Archived from the original on 14 March 2014. Retrieved 6 June 2014. https://web.archive.org/web/20140314173455/https://www.bfm.admin.ch//bfm/en/home/themen/fza_schweiz-eu-efta.html ↩
"Working in Switzerland as a citizen of an EU/EFTA member state – www.ch.ch". ch.ch. Archived from the original on 12 September 2014. Retrieved 8 June 2015. https://www.ch.ch/en/working-switzerland-eu-efta/ ↩
EU and Switzerland agree on free movement Archived 19 September 2018 at the Wayback Machine – euobserver, 22 December 2016 https://euobserver.com/justice/136398 ↩
Agreement on the European Economic Area - Protocol 15 on transitional periods on the free movement of persons (Switzerland and Liechtenstein) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:21994A0103(16) ↩
Decision of the EEA Council No 1/95 of 10 March 1995 on the entry into force of the Agreement on the European Economic Area for the Principality of Liechtenstein https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:21995D0420(01) ↩
Liechtenstein Wirtschaft Archived 28 February 2017 at the Wayback Machine Work permits and residence https://www.liechtenstein-business.li/en/for-employees/work-and-residence/ ↩
"Work permits and labour market restrictions in some EU countries". Europa. 27 May 2014. Retrieved 2 June 2014. http://europa.eu/youreurope/citizens/work/abroad/work-permits/index_en.htm ↩