EU governments’ power game with freedom of movement for European citizens: who is losing?

Freedom of movement of people inside the Union is one of the four fundamental freedoms on which the European construction is based, along with that of goods, services and capital. While the principle is clearly stated in the EU’s treaties, when it comes to applying it, many issues surface.  The European Executive, the Commission, has proposed in recent years a number of pieces of legislation aimed at removing the remaining regulatory barriers between the countries.

These laws have eventually been approved in the Council of the EU, but only after tough disputes between the Member States. However, the introduction of qualified majority voting has made it possible to reach a position even without all governments agreeing. This has set the ground for a new kind of power game in the Council, with each interested government looking to find allies and build majorities, or blocking minorities. Failure to do so results in being left in minority and losing the battle. 

Between February and May 2014 the Council of the European Union gave the go-ahead to three key directives in the areas of employment, civil liberties and social affairs. The approved texts concern the EU’s free movement of workers, the rights conferred on workers and the conditions of entry and residence of third-country nationals looking for seasonal work, as well as the intra-corporate transfer of human resources. The directives were adopted with qualified majority[1].


[1]Under the ordinary legislative procedure, the Council acts by qualified majority, which is currently the most widely used voting method in the Council. From November 1st 2014 the Council votes with a new procedure for qualified majority, but the votes in this analysis took place before that date. Therefore, the Council voted with the previous qualified majority rule, which means each member state representative has a certain number of votes, as set out in the EU treaties. The votes are weighted reflecting the size of the population of each member state. A qualified majority is reached if a majority of member states (15 member states) vote in favour and a minimum of 260 votes out of the total 352 votes are cast in favour.


Spain, Hungary and Austria object to a Council’s common position

In regards to the intra-corporate transfers of human resources, on May 13th 2014 the Council adopted the conditions of entry and residence of third-country nationals whose stay is for more than 90 days and who applied to be admitted into the territory of a Member State as managers, specialists or trainee employees (click here to see the votes). The directive makes it easier for multinational companies to temporarily assign highly qualified employees to subsidiaries in the EU.

The text was approved by the Council at first reading, but with the Spanish, Hungarian and Austrian delegations abstaining (the Danish, Irish and United Kingdom delegations didn’t participate in the vote, as this matter does not concerns them, according to the Treaty). For Hungary and Austria, this is not the first time they have objected to a Council’s common position in such a matter.

Representatives of the Hungarian Government pointed out that social security policy should remain the competence of the Member States, so the directive cannot restrict the sovereignty of the States in this area. HU sees the agreement as too ambiguous and therefore it does not have a legal certainty. “The adopted text could create a situation with significant negative impact on the investment readiness in certain economic relations and therefore entail unfavourable effects on economic recovery”, Hungary said in a statement.[1]


Minority in all policy areas

In the area of employment and social affairs, Hungary has disagreed with the Council’s common position three times, only Germany and UK have found themselves in minority more frequently on these matters. Hungary’s conservative government has shown that it takes topics related to immigration and cross boarder workers rather seriously and has made statements that question the benefits of freedom of movement in the EU.

Austria, for its part, which is governed by a grand coalition, with the socialists in the driving seat, has been in minority six times in the civil liberties and home affairs area, which is more often than any other State in the Council. The Austrian delegation was of the opinion that the adopted text is not consistent with other EU instruments and its wording might give rise to many problems of misunderstandings at national and EU level.1 At home, Austria’s immigration policy uses measures that both welcome and restrict immigration. The State stresses the limited intake capacity of the labour market and the ongoing integration of a large number of migrants already settled in AU.[1] The Government in Vienna also subjects all immigration to a quota, which is a tool to regulate the access of foreigners to their labour markets.[2]


[2] pp. 43-44

Minority civil liberties

The Netherlands, Poland and Czech Republic in a minority on how to manage seasonal workers from third countries

When it comes to the conditions of entry and stay of third-country nationals for the purposes of seasonal employment, the differences were clearer. On February 17th 2014 the Council approved the proposal with Bulgaria and Austria abstaining and the Czech Republic, Netherlands and Poland voting against (the Danish, Irish and the United Kingdom delegations did not participate in the vote). To see how each Member State voted, click here.

The directive determines the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers and also defines their rights. The text states the criteria for access to employment in Member States for stays not exceeding 90 days and also the conditions for stay and the criteria for access to employment for stays longer than 90 days. The proposal is also aimed at ensuring equal treatment for seasonal workers with nationals of the host Member State in terms of employment, as well as health and safety requirements at the workplace.

Czech Republic and Poland stated that on the basis of the directive, seasonal workers don’t have the right to intra-EU mobility.[1] The two countries were of the opinion that legislation at the EU level is not necessary and that the complicated procedure set up in this directive may hinder the flow of seasonal workers and result in shortages of labour force, particularly in Member States that rely on third-country seasonal workers. In the field of civil liberties and home affairs, Czech Republic and Poland have remained in minority for three times out of total 62 votes they participated in.

For its part, Bulgaria has participated in 62 votes in the area of civil liberties and home affairs, of which it has opposed the common position reached in two occasions. The Bulgarian government has stated that the backbones of the EU’s functioning treaty only allows fair, but not equal treatment of the third country nationals legally residing in the Member States. Therefore, the access of third country nationals to social security with absolutely equalized rights to those of the EU citizens is controversial. In Bulgaria, the access to healthcare systems or family benefits depends on the existence of a permanent residence in the country, and the Government in Sofia wanted to keep its right to maintain this demand for third country nationals.


Movement 2

The UK on its own on some matters regarding free movement of workers

When it comes to free movement of workers and measures facilitating the exercise of rights conferred on workers, the Council adopted the legislative act to ensure a better application of EU legislation on people’s right to work in another Member State than their own. The directive was approved on April 14th 2014 with UK voting against (click here to see how each Member State voted on the directive). The legislation ensures that national legal tools exist if workers consider their rights to be abused. EU free movement and anti-discrimination principles guarantee people working abroad have the same employment rights as nationals. The directive requires national authorities to ensure judicial procedures are available for all EU workers who consider they are being unfairly discriminated against in some way.

UK has expressed, through official statements, reservations about EU’s immigration policy and freedom of movement in the EU.[1] According to London, many European migrants are attracted by the flexibility of the UK’s labour market. EU citizens who only intend to work in the UK for a few years and then return home may be more willing to accept lower wages and worse living conditions for a temporary period in order to support a better life in their country of origin.

The British Government has justified its relatively low level of support for EU’s policies in these matters saying that this is due to the relatively large amount of EU workers trying to gain access to UK’s labour market.

The British Government has found itself in minority 5 times on civil liberties issues (second only to Austria) and on five other occasions when it came to voting on employment and social affairs issues (on a par with Germany). Overall, the UK government was in minority most frequently by far, voting differently than the majority on 82 occasions, out of 664votes it participated it.


Minority Employment

As this analysis has shown, free movement of persons remains one of the most disputed areas between the national governments, when their representatives meet in Brussels to vote on legislation. However, the EU’s functioning rules and its fundamental principles require that the legislation, once adopted by qualified majority or unanimity, be applied across all the EU. In practice, however, this does not always go smoothly, which leads to further disputes between the European Commission and various national governments over implementation.

Latest developments

The final acts of the three directives have all been published in the official journal of the European Union in the spring of 2014.

All the directives have come into force the day following their publication into the official journal and Member States are required to adopt all the necessary implementing measures in order to comply with these directives within a period of two years after their entry into force.