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Document 52013SC0148
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers
/* SWD/2013/0148 final */
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers /* SWD/2013/0148 final */
TABLE OF CONTENTS 1........... INTRODUCTION........................................................................................................ 3 2........... PROCEDURAL ISSUES AND
CONSULTATION OF INTERESTED PARTIES....... 3 3........... PROBLEM DEFINITION............................................................................................. 4 3.1........ The state of play............................................................................................................. 4 3.2........ The problems................................................................................................................. 4 3.2.1..... Non-compliance with EU law (non-conforming legislation or incorrect application) and the effect on EU migrant workers.......................................................................................................................... 4 3.2.2..... Failure of employers and legal
advisors to comply with EU law (unable or unwilling to apply EU law correctly) and
the effect on EU migrant workers.................................................................................... 4 3.2.3..... EU migrant workers not having
access to information or the means to ensure their rights... 5 3.3........ Causes and drivers......................................................................................................... 5 3.4........ Who is affected and how................................................................................................ 5 3.5........ Baseline scenario and the need
for intervention................................................................ 5 4........... ANALYSIS OF SUBSIDIARITY................................................................................. 6 5........... POLICY OBJECTIVES................................................................................................ 6 6........... POLICY OPTIONS...................................................................................................... 6 6.1........ No further action at EU level
(Baseline scenario)............................................................. 6 6.2........ Common guidance documents......................................................................................... 6 6.3........ Commission’s recommendation to
Member States........................................................... 6 6.4........ Directive introducing support
measures for EU migrant workers....................................... 7 6.5........ Directive introducing enhanced
protection for EU migrant workers................................... 7 7........... ANALYSIS OF IMPACTS........................................................................................... 7 7.1........ Option 1: Baseline scenario............................................................................................. 7 7.2........ Option 2: Guidance documents....................................................................................... 7 7.3........ Option 3: Recommendation............................................................................................. 8 7.4........ Option 4: Directive introducing
support measures............................................................ 8 7.5........ Option 5: Directive introducing
enhanced protection........................................................ 9 8........... COMPARISON OF OPTIONS.................................................................................. 10 9........... MONITORING AND EVALUATION....................................................................... 10 COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures facilitating the
exercise of rights conferred on workers in the context of freedom of movement
for workers (Text with EEA relevance) 1. INTRODUCTION Freedom of movement for workers is one of
the four freedoms on which the Single Market is based, along with the free
movement of goods, services and capital. It is enshrined in Article 45 TFEU and
has been specified into secondary law through Regulation 492/2011 (formerly
Regulation 1612/68). It means that EU citizens who move to another
Member State for employment purposes have the right not to be discriminated
against on the basis of their nationality as regards: access to employment,
conditions of employment, access to social and tax advantages, membership of
trade unions, access to training, access to housing, and access to education
for children. The present initiative is not intended to
create new rights for the EU’s migrant workers, but responds to the numerous
concerns expressed by various parties on the need to ensure that the rights of
European citizens are real and to remove obstacles they face when moving across
borders. It fits into the Europe 2020 strategy and the ‘Employment package’
adopted by the Commission. 2. PROCEDURAL
ISSUES AND CONSULTATION OF INTERESTED PARTIES Studies conducted and reports drawn up by experts
in the field of free movement of workers, such as the network of independent
experts that supports the activities of DG Employment, Social Affairs and
Inclusion, have been taken into consideration. A public consultation was held from June to
August 2011, in which citizens and organisations were invited to give their
views on the main problems linked to the mobility of EU workers, on the current
level of protection afforded and on the need for the EU to act in order to help
workers enjoy their rights fully. The issue was discussed within the Advisory
Committee on free movement of workers, which is composed of representatives of
Member States and of social partners at both national and European level. 3. PROBLEM
DEFINITION 3.1. The
state of play The freedom of movement for workers that
has been in place for more than 40 years is underpinned by important and strong
rights. The Court of Justice has provided important guidance on the
interpretation of the relevant provisions. Infringement procedures are an important means
of ensuring that the rules are applied. They lead to changes in non-conforming
legislation and general practices. However, they will not solve specific cases
for the individuals concerned and may not be launched in cases involving
private entities. Unlike what happens at EU level in other
fields such as discrimination on grounds of race, religion, age or gender, EU migrant
workers who suffer discrimination on the grounds of nationality have no further
means than relying on the Commission’s action and bringing a case before the
national courts. The existing measures at EU level are therefore limited as
regards effective exercise of the rights of individual workers. Each Member State decides what kind of
support and protection should be provided to EU migrant workers according to
their own legal systems. Support and protection therefore differ between Member
States. Reports from experts in the field suggest that in countries where
nationality is explicitly included among the grounds of discrimination that are
prohibited, protection of EU citizens is stronger. There is a lot of scope for greater
geographical mobility between EU Member States: according to the EU Labour Force
Survey, in 2011 only 3.1 % of the working-age European population lived in
an EU Member State other than their own. 3.2. The
problems While the rights relating to free movement
of workers are strong, a number of indicators show that discrimination on the
grounds of nationality takes place and that it is difficult for workers to
exercise their rights in practice. The following problems have been identified: 3.2.1. Non-compliance of public authorities with EU law (non-conforming legislation or incorrect application) and the effect on EU migrant workers The rules on free movement of workers have
been in force for more than 40 years. In spite of this, problems due to non-compliance
of national legislation and general practices persist in Member States and
continue to be reported to the Commission. These problems can have severe negative
consequences for EU citizens, as they may affect their job prospects, their
working conditions or their access to social advantages, and disrupt their
lives at both professional and personal levels. They also affect the
integration of EU citizens in the labour market and in the society of the host
country. While these problems may be addressed at EU level through infringement
procedures, this will not have a direct effect on the individuals concerned. 3.2.2. Failure
of employers and legal advisors to comply with EU law (unable or unwilling to
apply EU law correctly) and the effect on EU migrant workers Cases have been reported where public and
private employers have failed to respect the EU rules, regardless of whether
the legislation at national level is correct or not. Information collected by
experts and by the Commission suggests that this problem is recurrent, although
awareness of such problems depends very much on the level of publicity given to
these cases. Problems due to action taken by private employers cannot be
addressed at EU level through the infringement procedure. Therefore, citizens
who suffer from discrimination may only rely on the mechanisms and means
available at the national level. Actions of employers can have severe
consequences for the personal situation of the workers concerned, hindering
their employment chances and/or affecting their working conditions. 3.2.3. EU migrant
workers not having access to information or the means to ensure their rights Respondents to various surveys have said
that they do not know where to turn to when faced with problems concerning
their EU rights. This indicates that there is no clear point of reference for
EU citizens. Lack of clarity about the best place to obtain information about
EU rights was also mentioned. It is also difficult for EU workers exercising
their right to free movement , due to a number of factors (such as not knowing
the procedures, not knowing the national systems, lack of linguistic abilities),
to avail themselves of the means of protection available. This was confirmed by
the results of the public consultation, where a majority of citizens stated
that the level of protection afforded to workers would strongly influence their
decision to go and work in another Member State. Reluctance to report
discrimination is also an important factor. 3.3. Causes
and drivers Four main drivers have been identified: (1)
unawareness of the rights of EU workers under EU law and unawareness of the
means of redress available; (2) lack of understanding of EU law and lack of
legal certainty; (3) insufficient support to enable EU migrant workers to
exercise their rights; (4) protectionism and unwillingness to comply. 3.4. Who
is affected and how The problems identified affect EU citizens
who move to another Member State for employment purposes, including jobseekers
and citizens of a given Member State who have exercised their right to free
movement and come back to their Member State of origin in order to work. On average, 67.9 % of the EU
working-age citizens who live in another Member State are in employment and 9.1 %
are unemployed. So, theoretically, all of them may at some point have problems
relating to the effective application of rights. Those citizens who intend to
move in the future (17 %) may also be affected. The problems may concern all EU workers and
all occupations and sectors of activity. Family members may also be affected,
as they have certain rights under the EU provisions. Employers and national authorities may be
affected too, as better enforcement of migrant workers’ rights might mean that
they incur costs. 3.5. Baseline
scenario and the need for intervention In the current economic and social context,
further limitations on the rights of EU migrant workers cannot be excluded.
Specific actions identified across Europe and various surveys show that there
is increasing intolerance towards EU migrant workers, which may translate into
discriminatory actions. Following the enlargements of 2004 and 2007,
workers form other Member States are faced with new problems of application of
EU law and this requires a more pedagogical approach in the field of free
movement. The present initiative can help encourage and
facilitate mobility, as fighting discrimination on grounds of nationality will
send a positive signal to those who wish to work in another Member State, and
will mean that fewer people are discouraged from moving because of bad
experiences or because they expect to find problems. 4. ANALYSIS
OF SUBSIDIARITY Article 46 TFEU establishes the Union’s
competence to issue directives or regulations setting out measures required to
bring about freedom of movement for workers, as defined in Article 45 TFEU. The present initiative will allow Member
States to adopt appropriate implementing measures, thus respecting the
principle of proportionality. Member States which already have detailed legal
protection against discrimination on the grounds of nationality will not need
to make major changes to their own systems. Achievement of the objectives of this
initiative would help consolidate the fundamental rights set out in the Charter
of Fundamental Rights of the European Union. 5. POLICY
OBJECTIVES The present initiative ties in with the
general objective of ensuring that EU citizens are treated equally. This is one
of the core values of the European Union and a major part of EU citizenship.
Ensuring that this goal is achieved will help the internal market to run more
smoothly. The following specific objectives have been
identified: –
reducing discrimination of EU migrant workers on
the grounds of nationality; –
narrowing the gap between the rights on paper
and their exercise in practice, thus helping to achieve full and correct
implementation of the existing legislation and allowing the internal market to
run more smoothly. In order to meet these policy objectives,
operational objectives have been identified: –
increasing awareness among citizens, employers,
public authorities and other stakeholders about EU migrant workers’ rights; –
improving legal certainty; –
giving EU workers the appropriate tools of
support when exercise their rights. 6. POLICY
OPTIONS The following options have been identified: 6.1. No
further action at EU level (Baseline scenario) 6.2. Common
guidance documents This option would be focused on the
adoption of common guidelines by Member States and the Commission in order to
have a common approach to the application and interpretation of EU rules on
free movement of workers. It would be complemented by interpretative documents
adopted by the Commission. 6.3. Commission
Recommendation to Member States. This option would consist of the adoption
of a general recommendation by the Commission addressed to Member States in
order to encourage them to take action for: –
increasing awareness of EU migrant workers’
rights; –
increasing the support given to EU migrant
workers, by requesting that means of redress be provided, setting up supportive
structures for EU migrant workers and allowing associations and organisations
to take legal action on behalf or in support of EU migrant workers. 6.4. Directive
introducing support measures for EU migrant workers, in particular: - a legal obligation to provide EU migrant
workers with means of redress; - the setting up of structures providing support
to EU migrant workers. This would involve promotion of rights, assistance to EU
migrant workers in enforcing their rights, conducting surveys, drawing up reports
and adopting recommendations; - ensuring that associations, organisations
or legal entities with an interest in the promotion of the right to free
movement of workers may engage in any administrative or judicial procedure on
behalf or in support of EU migrant workers. 6.5. Directive
introducing enhanced protection for EU migrant workers In addition to the elements described under
policy option 4, this option would also introduce: - an obligation for employers to prevent
discrimination within their undertakings; - measures imposing sanctions or
compensation; - a legal provision aimed at protecting EU migrant
workers against any adverse treatment as a result of making a complaint. 7. ANALYSIS
OF IMPACTS From an economic perspective, it has not
been possible to identify any impacts other than those that will naturally stem
from the expected social impacts and the actual costs of implementation.
Reducing discrimination on the grounds of nationality in regard to employment
might make intra-EU mobility more attractive. While the increase in mobility
may not be substantial, as discrimination is only one of the factors that
influence a person's decision to move, its effects on the functioning of the
Single Market will be positive, as mobility can play a role in economic growth. 7.1. Option
1: Baseline scenario Social impact The identified problems and drivers would
remain unaddressed. It would involve no significant change in national
authorities’ and employers’ behaviour. There would be no substantial impacts on
awareness of rights and legal certainty. Maintaining the status quo would furthermore
mean that there would be no minimum consolidated support or EU-level protection
of migrant workers. It would continue to affect negatively the individuals who move
for employment purposes and would perpetuate the limited ability of EU migrant
workers to participate fully in the labour market and society of the host
Member State. Economic impact No
implementation costs have been identified. 7.2. Option
2: Common guidance documents Social impact The adoption of guidance would entail a
common interpretation of the current EU rules with a view to their practical
implementation by national administrations. It would thus contribute to
increasing legal certainty and reducing the implementation gaps. It might also result
in fewer instances of discrimination. The guidance would also help raise awareness
among national authorities about the rights linked to free movement of workers
but would depend on the publicity and dissemination given in each Member State. The guidance would focus on questions of
interpretation of EU law but would not contain any specific measure providing
assistance and support to workers. Therefore, although it can induce workers to
use their rights more fully because of greater legal certainty, it will not
help them enforce those rights when problems arise. Its overall social impact would therefore
be positive but limited. Economic
impact This option might involve some
implementation costs linked to the dissemination and publication of the
guidance, including translation costs. Costs will depend on the specific
efforts made by Member States in this regard. This option could reduce the level of
misapplication of EU law by national administrations but it would not be
relevant to a wider range of stakeholders and therefore it might have a limited
impact on the number of complaints and court procedures. No
implementation costs have been identified for enterprises. 7.3. Option
3: Commission Recommendation to Member States Impacts of this option might be potentially
the same as in policy option 4, as the same issues will be addressed. The
difference between the options and therefore their correspondent impacts lies
in their binding or non-binding nature. Social impact The recommendation would give the issue a
certain visibility which could improve the awareness of rights among citizens,
relevant stakeholders and national authorities. It could increase involvement
of the national authorities in reducing implementation gaps and help strengthen
the support and help mechanisms available to EU migrant workers. The recommendation would not impose any
obligation on Member States. Taking into account the different perceptions and
actions in the field of free movement of workers and their rights, there is a
risk of increased diversity in the way problems are addressed in the Member
States. The social impact might therefore be
positive but it will depend on the degree of implementation in each Member
State, and increased diversity might reduce the advantages. Economic impact Impacts including costs will depend on the
specific actions taken by Member States. 7.4. Option
4: Directive introducing support measures for EU migrant
workers Social impact Linking means of redress specifically to
matters of discrimination on the grounds of nationality would increase the level
of legal certainty, as citizens would be sure that specific procedures are
available to them no matter which Member State they decide to move to and work
in. Addressing nationality as a ground of
discrimination through specialised bodies, without making protection against
this kind of discrimination dependent on generous interpretations of the law
applicable in other fields, would increase legal certainty. The efforts of the supporting bodies
(surveys, reports, recommendations) would help to increase awareness and to end
discriminatory laws and practices. As they would offer EU migrant workers
advice and assistance, they can also be expected to encourage such workers to assert
their rights. Setting up similar bodies throughout the European Union would ensure
that citizens can have access to support and information in every Member State.
The fact that associations and organisations could take legal action would be
another incentive for EU migrant workers to assert their rights. The supporting bodies will also be in a
position to assist enterprises and trade unions when they need advice on
specific questions related to migrant workers’ rights. Making provision for
associations and organisations to take legal action would increase the number
of stakeholders involved in the fight against discrimination on grounds of
nationality. Overall the social impact will be positive,
as discrimination on the basis of nationality should be reduced. Economic
impact The setting up of supporting bodies would
involve implementation costs for national authorities. However, as it will be
left to Member States to designate the bodies concerned, the actual costs will
vary according to whether a new structure is created or whether the new tasks are
assigned to already existing bodies. All 27 Member States currently have
specific structures for dealing with discrimination on other grounds; therefore
if they decide to confer on them the task of fighting discrimination on grounds
of nationality, the implementation costs would be limited to extension of their
role. The measures proposed are expected to have
a preventive effect and reduce the need to rely on court procedures to resolve
disputes, as seems to be the case in countries where supporting bodies covering
discrimination on the grounds of nationality already exist. While no
implementation costs have been identified for enterprises, this option would
involve some costs for associations and organisations that will be allowed to
take legal action, as they will have to bear the costs linked to the legal
procedures. 7.5. Option
5: Directive introducing enhanced protection for EU
migrant workers The provisions that would be adopted under
this policy option, in addition to those foreseen under option 4, would also
impose some obligations on employers. Social impact Active measures to prevent discrimination
would be directly applicable in the relevant context, namely at the workplace.
That means there would be certainty that the information reaches its
addressees. Sanctions and compensation to victims would also increase legal
certainty, as a set of rights and obligations would be created. The information obligation and/or active
measures to prevent discrimination would make equal treatment a part of
companies’ human resources policy, thereby raising awareness of the applicable
rights among national workers and entrepreneurs and also the sensitivity of the
issue. Measures for prevention of discrimination
are by their nature intended to do away with discriminatory practices. The threat
of sanctions may deter employers from acting in a discriminatory way. Introducing provisions on victimisation
would put individual workers in a stronger position and make them more
assertive about their rights. The provisions of this policy option would
help reduce discrimination on the basis of nationality by a combined approach
of incentivising workers to exercise their rights (option 4) and introducing
prevention of discrimination. While the elements envisaged would send an
important message to society about fighting discrimination, it has not been
possible to show whether they will in practice have a significant effect on the
individuals concerned. Economic
impact Implementation costs for national
authorities are the same as under policy option 4. The number of court cases
might change, but this is very uncertain; furthermore, short- and long-term
effects might be completely different. Therefore, it was not possible to
include this aspect in the analysis. This policy option would involve compliance
costs for employers, which would mainly consist of man-hour costs associated
with taking active measures, e.g. for training facilities and activities. It is
difficult to provide proper estimates of those costs, as they will vary
according to the measures taken by employers. For the most part they can be
expected to vary with the size of the enterprise, while a small fixed-cost
component would be independent of the size of the company. Implementation costs will also arise from
the provisions on sanctions/compensation. However, establishment of the
specific amount will be left to each Member State. The specific economic and
financial impacts will therefore depend on each Member State. 8. COMPARISON
OF OPTIONS The options have been compared with regard
to their effectiveness in achieving the specific objectives of the initiative,
their efficiency, consistency with the general objectives of the EU and their
impacts on stakeholders. The preferred option is a combination of
options 2 and 4. They are a bit less effective than policy option 5 but this
approach is the most efficient. Together, these options provide a comprehensive
solution to all the specific problems identified without involving excessive
compliance costs. They are more consistent with the general objectives than option
5, which puts disproportionate costs on companies. They are also the most
predictable options in terms of their effects. 9. MONITORING
AND EVALUATION Several indicators, both quantitative (e.g.
the number of complaints) and qualitative (e.g. the reports from the network of
experts), will be used for monitoring purposes, together with the reports,
surveys and recommendations produced by the supporting bodies that will be set
up according to this initiative. Two years after the transposition deadline,
an evaluation will be carried out by the Commission with the assistance of
external experts. The evaluation will assess: –
awareness among citizens and stakeholders of the
existence of the elements introduced through the Directive; –
the activities carried out by the supporting
bodies, and the role of other organisations and associations; –
the types of discrimination most commonly dealt
with and whether this has changed as compared to the status quo. Overall, this evaluation should assess
whether the newly introduced elements have led to positive changes and identify
the difficulties faced so far.