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Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (codification) (Text with EEA relevance)

EU Regulation No 492/2011 · Adopted 5 April 2011 · Extends to United Kingdom

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Regulation (EU) No 492/2011 of the European Parliament and of the Council

of 5 April 2011

on freedom of movement for workers within the Union

(codification)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 46 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committeef1,

Acting in accordance with the ordinary legislative proceduref2,

Whereas:

(1)

Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Communityf3 has been substantially amended several timesf4. In the interests of clarity and rationality the said Regulation should be codified.

(2)

Freedom of movement for workers should be secured within the Union. The attainment of this objective entails 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, as well as the right of such workers to move freely within the Union in order to pursue activities as employed persons subject to any limitations justified on grounds of public policy, public security or public health.

(3)

Provisions should be laid down to enable the objectives laid down in Articles 45 and 46 of the Treaty on the Functioning of the European Union in the field of freedom of movement to be achieved.

(4)

Freedom of movement constitutes a fundamental right of workers and their families. Mobility of labour within the Union must be one of the means by which workers are guaranteed the possibility of improving their living and working conditions and promoting their social advancement, while helping to satisfy the requirements of the economies of the Member States. The right of all workers in the Member States to pursue the activity of their choice within the Union should be affirmed.

(5)

Such right should be enjoyed without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services.

(6)

The right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers be eliminated, in particular as regards the conditions for the integration of the worker’s family into the host country.

(7)

The principle of non-discrimination between workers in the Union means that all nationals of Member States have the same priority as regards employment as is enjoyed by national workers.

(8)

The machinery for vacancy clearance, in particular by means of direct cooperation between the central employment services and also between the regional services, as well as by coordination of the exchange of information, ensures in a general way a clearer picture of the labour market. Workers wishing to move should also be regularly informed of living and working conditions.

(9)

Close links exist between freedom of movement for workers, employment and vocational training, particularly where the latter aims at putting workers in a position to take up concrete offers of employment from other regions of the Union. Such links make it necessary that the problems arising in this connection should no longer be studied in isolation but viewed as interdependent, account also being taken of the problems of employment at the regional level. It is therefore necessary to direct the efforts of Member States toward coordinating their employment policies,

HAVE ADOPTED THIS REGULATION:

Annotations to the whole text

Footnotes

f1

OJ C 44, 11.2.2011, p. 170.

f2

Position of the European Parliament of 7 September 2010 (not yet published in the Official Journal) and decision of the Council of 21 March 2011.

f3

OJ L 257, 19.10.1968, p. 2.

f4

See Annex I.

Contents

  1. Chapter I: EMPLOYMENT, EQUAL TREATMENT AND WORKERS’ FAMILIES
  2. Eligibility for employment
  3. 1Article 1 Repealed
  4. 2Article 2
  5. 3Article 3
  6. 4Article 4
  7. 5Article 5
  8. 6Article 6
  9. Employment and equality of treatment
  10. 7Article 7
  11. 8Article 8
  12. 9Article 9 Repealed
  13. Workers’ families
  14. 10Article 10 Repealed
  15. Chapter II: CLEARANCE OF VACANCIES AND APPLICATIONS FOR EMPLOYMENT
  16. Cooperation between the Member States and with the Commission
  17. 11Article 11 Repealed
  18. 12Article 12 Repealed
  19. Machinery for vacancy clearance
  20. 13Article 13
  21. 14Article 14 Repealed
  22. 15Article 15 Repealed
  23. 16Article 16 Repealed
  24. Measures for controlling the balance of the labour market
  25. 17Article 17 Repealed
  26. European Coordination Office
  27. 18Article 18 Repealed
  28. 19Article 19 Repealed
  29. 20Article 20 Repealed
  30. Chapter III: COMMITTEES FOR ENSURING CLOSE COOPERATION BETWEEN THE MEMBER STATES IN MATTERS CONCERNING THE FREEDOM OF MOVEMENT OF WORKERS AND THEIR EMPLOYMENT
  31. The Advisory Committee
  32. 21Article 21
  33. 22Article 22
  34. 23Article 23
  35. 24Article 24
  36. 25Article 25
  37. 26Article 26
  38. 27Article 27
  39. 28Article 28
  40. The Technical Committee
  41. 29Article 29
  42. 30Article 30
  43. 31Article 31
  44. 32Article 32
  45. 33Article 33
  46. 34Article 34
  47. Chapter IV: FINAL PROVISIONS
  48. 35Article 35
  49. 36Article 36
  50. 37Article 37
  51. 38Article 38 Repealed
  52. 39Article 39
  53. 40Article 40
  54. 41Article 41
  55. 42Article 42
  56. Signature
  57. Annex IREPEALED REGULATION WITH LIST OF ITS SUCCESSIVE AMENDMENTS
  58. Annex IICorrelation Table

1F1

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2C1

Any national of a Member State and any employer pursuing an activity in the territory of a Member State may exchange their applications for and offers of employment, and may conclude and perform contracts of employment in accordance with the provisions in force laid down by law, regulation or administrative action, without any discrimination resulting therefrom.

3C1

1.

Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply:

(a)

where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or

(b)

where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered.

The first subparagraph shall not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.

2.

There shall be included in particular among the provisions or practices of a Member State referred to in the first subparagraph of paragraph 1 those which:

(a)

prescribe a special recruitment procedure for foreign nationals;

(b)

limit or restrict the advertising of vacancies in the press or through any other medium or subject it to conditions other than those applicable in respect of employers pursuing their activities in the territory of that Member State;

(c)

subject eligibility for employment to conditions of registration with employment offices or impede recruitment of individual workers, where persons who do not reside in the territory of that State are concerned.

4C1

1.

Provisions laid down by law, regulation or administrative action of the Member States which restrict by number or percentage the employment of foreign nationals in any undertaking, branch of activity or region, or at a national level, shall not apply to nationals of the other Member States.

2.

When in a Member State the granting of any benefit to undertakings is subject to a minimum percentage of national workers being employed, nationals of the other Member States shall be counted as national workers, subject to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualificationsf1.

5C1

A national of a Member State who seeks employment in the territory of another Member State shall receive the same assistance there as that afforded by the employment offices in that State to their own nationals seeking employment.

6C1

1.

The engagement and recruitment of a national of one Member State for a post in another Member State shall not depend on medical, vocational or other criteria which are discriminatory on grounds of nationality by comparison with those applied to nationals of the other Member State who wish to pursue the same activity.

2.

A national who holds an offer in his name from an employer in a Member State other than that of which he is a national may have to undergo a vocational test, if the employer expressly requests this when making his offer of employment.

7C1

1.

A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.

2.

He shall enjoy the same social and tax advantages as national workers.

F12A.

Paragraphs 1 and 2 do not apply in relation to the matters set out in the Schedule to the Cessation of EU Law Relating to Prohibitions on Grounds of Nationality and Free Movement of Persons Regulations 2022 (relevant matters).

F23.

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4.

Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are nationals of the other Member States.

8C1

A worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, including the right to vote and to be eligible for the administration or management posts of a trade union. He may be excluded from taking part in the management of bodies governed by public law and from holding an office governed by public law. Furthermore, he shall have the right of eligibility for workers’ representative bodies in the undertaking.

The first paragraph of this Article shall not affect laws or regulations in certain Member States which grant more extensive rights to workers coming from the other Member States.

9F1

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10F1

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11F1

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12F1

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13

F11.

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2.

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14F1

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15F1

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16F1

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17F1

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18F1

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19F1

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20F1

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21

The Advisory Committee shall be responsible for assisting the Commission in the examination of any questions arising from the application of the Treaty on the Functioning of the European Union and measures taken in pursuance thereof, in matters concerning the freedom of movement of workers and their employment.

22

The Advisory Committee shall be responsible in particular for:

  1. (a)

    examining problems concerning freedom of movement and employment within the framework of national manpower policies, with a view to coordinating the employment policies of the Member States at Union level, thus contributing to the development of the economies and to an improved balance of the labour market;

  2. (b)

    making a general study of the effects of implementing this Regulation and any supplementary measures;

  3. (c)

    submitting to the Commission any reasoned proposals for revising this Regulation;

  4. (d)

    delivering, either at the request of the Commission or on its own initiative, reasoned opinions on general questions or on questions of principle, in particular on exchange of information concerning developments in the labour market, on the movement of workers between Member States, on programmes or measures to develop vocational guidance and vocational training which are likely to increase the possibilities of freedom of movement and employment, and on all forms of assistance to workers and their families, including social assistance and the housing of workers.

23

1.

The Advisory Committee shall be composed of six members for each Member State, two of whom shall represent the Government, two the trade unions and two the employers’ associations.

2.

For each of the categories referred to in paragraph 1, one alternate member shall be appointed by each Member State.

3.

The term of office of the members and their alternates shall be 2 years. Their appointments shall be renewable.

On expiry of their term of office, the members and their alternates shall remain in office until replaced or until their appointments are renewed.

24

The members of the Advisory Committee and their alternates shall be appointed by the Council, which shall endeavour, when selecting representatives of trade unions and employers’ associations, to achieve adequate representation on the Committee of the various economic sectors concerned.

The list of members and their alternates shall be published by the Council for information in the Official Journal of the European Union.

25

The Advisory Committee shall be chaired by a member of the Commission or his representative. The Chairman shall not vote. The Committee shall meet at least twice a year. It shall be convened by its Chairman, either on his own initiative, or at the request of at least one third of the members.

Secretarial services shall be provided for the Committee by the Commission.

26

The Chairman may invite individuals or representatives of bodies with wide experience in the field of employment or movement of workers to take part in meetings as observers or as experts. The Chairman may be assisted by expert advisers.

F1The European Labour Authority established by Regulation (EU) 2019/1149 of the European Parliament and of the Council f1 shall participate in the meetings of the Advisory Committee as an observer, providing technical input and expertise as relevant.

27

1.

An opinion delivered by the Advisory Committee shall not be valid unless two thirds of the members are present.

2.

Opinions shall state the reasons on which they are based; they shall be delivered by an absolute majority of the votes validly cast; they shall be accompanied by a written statement of the views expressed by the minority, when the latter so requests.

28

The Advisory Committee shall establish its working methods by rules of procedure which shall enter into force after the Council, having received an opinion from the Commission, has given its approval. The entry into force of any amendment that the Committee decides to make thereto shall be subject to the same procedure.

29

The Technical Committee shall be responsible for assisting the Commission in the preparation, promotion and follow-up of all technical work and measures for giving effect to this Regulation and any supplementary measures.

30

The Technical Committee shall be responsible in particular for:

  1. (a)

    promoting and advancing cooperation between the public authorities concerned in the Member States on all technical questions relating to freedom of movement of workers and their employment;

  2. (b)

    formulating procedures for the organisation of the joint activities of the public authorities concerned;

  3. (c)

    facilitating the gathering of information likely to be of use to the Commission and the undertaking of the studies and research provided for in this Regulation, and encouraging exchange of information and experience between the administrative bodies concerned;

  4. (d)

    investigating at a technical level the harmonisation of the criteria by which Member States assess the state of their labour markets.

31

1.

The Technical Committee shall be composed of representatives of the Governments of the Member States. Each Government shall appoint as member of the Technical Committee one of the members who represent it on the Advisory Committee.

2.

Each Government shall appoint an alternate from among its other representatives — members or alternates — on the Advisory Committee.

32

The Technical Committee shall be chaired by a member of the Commission or his representative. The Chairman shall not vote. The Chairman and the members of the Committee may be assisted by expert advisers.

Secretarial services shall be provided for the Committee by the Commission.

33

The proposals and opinions formulated by the Technical Committee shall be submitted to the Commission, and the Advisory Committee shall be informed thereof. Any such proposals and opinions shall be accompanied by a written statement of the views expressed by the various members of the Technical Committee, when the latter so request.

34

The Technical Committee shall establish its working methods by rules of procedure which shall enter into force after the Council, having received an opinion from the Commission, has given its approval. The entry into force of any amendment which the Committee decides to make thereto shall be subject to the same procedure.

35F1

The rules of procedure of the Advisory Committee in force on 8 November 1968 shall continue to apply.

36

1.

This Regulation shall not affect the provisions of the Treaty establishing the European Atomic Energy Community which deal with eligibility for skilled employment in the field of nuclear energy, nor any measures taken in pursuance of that Treaty.

Nevertheless, this Regulation shall apply to the category of workers referred to in the first subparagraph and to members of their families in so far as their legal position is not governed by the above-mentioned Treaty or measures.

2.

This Regulation shall not affect measures taken in accordance with Article 48 of the Treaty on the Functioning of the European Union.

3.

This Regulation shall not affect the obligations of Member States arising out of special relations or future agreements with certain non-European countries or territories, based on institutional ties existing on 8 November 1968, or agreements in existence on 8 November 1968 with certain non-European countries or territories, based on institutional ties between them.

Workers from such countries or territories who, in accordance with this provision, are pursuing activities as employed persons in the territory of one of those Member States may not invoke the benefit of the provisions of this Regulation in the territory of the other Member States.

37

Member States shall, for information purposes, communicate to the Commission the texts of agreements, conventions or arrangements concluded between them in the manpower field between the date of their being signed and that of their entry into force.

38F1

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39F1

The administrative expenditure of the Advisory Committee shall be included in the general budget of the European Union in the section relating to the Commission.

40

This Regulation shall apply to the Member States and to their nationals, without prejudice to Articles 2 and 3.

41

Regulation (EEC) No 1612/68 is hereby repealed.

References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.

42

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

Signature

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Annex IREPEALED REGULATION WITH LIST OF ITS SUCCESSIVE AMENDMENTS

Council Regulation (EEC) No 1612/68

(OJ L 257, 19.10.1968, p. 2)

Council Regulation (EEC) No 312/76

(OJ L 39, 14.2.1976, p. 2)

Council Regulation (EEC) No 2434/92

(OJ L 245, 26.8.1992, p. 1)

Directive 2004/38/EC of the European Parliament and of the Council

(OJ L 158, 30.4.2004, p. 77)

Only Article 38(1)

Annex IICorrelation Table

Regulation (EEC) No 1612/68This Regulation
Part IChapter I
Title ISection 1
Article 1Article 1
Article 2Article 2
Article 3(1), first subparagraphArticle 3(1), first subparagraph
Article 3(1), first subparagraph, first indentArticle 3(1), first subparagraph, point (a)
Article 3(1), first subparagraph, second indentArticle 3(1), first subparagraph, point (b)
Article 3(1), second subparagraphArticle 3(1), second subparagraph
Article 3(2)Article 3(2)
Article 4Article 4
Article 5Article 5
Article 6Article 6
Title IISection 2
Article 7Article 7
Article 8(1)Article 8
Article 9Article 9
Title IIISection 3
Article 12Article 10
Part IIChapter II
Title ISection 1
Article 13Article 11
Article 14Article 12
Title IISection 2
Article 15Article 13
Article 16Article 14
Article 17Article 15
Article 18Article 16
Title IIISection 3
Article 19Article 17
Title IVSection 4
Article 21Article 18
Article 22Article 19
Article 23Article 20
Part IIIChapter III
Title ISection 1
Article 24Article 21
Article 25Article 22
Article 26Article 23
Article 27Article 24
Article 28Article 25
Article 29Article 26
Article 30Article 27
Article 31Article 28
Title IISection 2
Article 32Article 29
Article 33Article 30
Article 34Article 31
Article 35Article 32
Article 36Article 33
Article 37Article 34
Part IVChapter IV
Title I—
Article 38—
Article 39Article 35
Article 40—
Article 41—
Title II—
Article 42(1)Article 36(1)
Article 42(2)Article 36(2)
Article 42(3), first subparagraph, first and second indentsArticle 36(3), first subparagraph
Article 42(3), second subparagraphArticle 36(3), second subparagraph
Article 43Article 37
Article 44Article 38
Article 45—
Article 46Article 39
Article 47Article 40
—Article 41
Article 48Article 42
—Annex I
—Annex II