2
Later on, the mobility of persons acquired new social dimensions and other new dimensions
as the political and constitutional ones, allowing also for other categories, not self-supporting, to
freely move around the Community, as the workers’ families, students, retired persons, but
unemployed and poor are still not legalized.
This mobility also facilitates the undertaking of professional training courses in other
Member States, which are required for a better qualification of the labor force in a certain sector
of a state and also for gaining important knowledge from the culture of another state.
The more specific issue we chose to discuss about in our paper is the labor market for
third country nationals, and in particular the Romanians working in Italy. Our “thesis” is
concentrated around this subject and we could not say that it is only a genuine thesis, but a
combination of a curiosity of how, on which grounds can the Romanian citizens work in Italy
and which are the Community provisions for them, if any, and if those provisions apply for them,
this part being more like a thesis. We tried to find out these things starting from the Community
rights for third country nationals in general and than what happens to Romanian citizens who
choose to go to work in Italy, which are the conditions, the rights and the obligations for their
entrance and staying there, how they are treated there and if all these are in accordance with the
Community legislation for third country nationals.
Both the third country nationals and the Romanian citizens are seen according to the
provisions for the new integrated EU Member States and also in relation to the other candidate
countries, where Romania stands, trying to see which are the perspectives for the mobility of the
Romanian workers in the Community’s Member States after Romania’s effectively joining the
EU. The importance of the free movement of workers for the candidate countries and for the new
Member States has a more financial aspect rather than being a cultural experience, if we could
say so, seen as a chance of gaining a better income. This is valid at least for the beginning, until
the economy of the new entered will reach the EU economic level and the free movement of
workers will begin to have also a cultural incentive. The objective of a Europe of 27 Member
States will mean that there will be 27 labor markets which will behave as a unified one based on
the Community rights to leave the state of origin in order to take up employment activities in
another Member State based on the fundamental principle of non discrimination on grounds of
nationality, being subject to equal treatment as the nationals of the host state as regards to equal
access to jobs, to effectively getting employed, to the labor laws of that respective state with all
their provisions about the working days, the salary, different benefits, the holidays, the maternity
rights, and so on.
3
The present work has four chapters, which we chose to treat from a legislative
perspective with some differences depending on the issues of each chapter, completed by a
statistical one, in which we included quantitative and qualitative data, and by an analytic and
descriptive one. The importance of the legislative perspective lies in the clear coherent
presentation of the rights, conditions and limits for the EU workers and third country nationals
under the Community legislation and in particular for the Romanian workers in Italy.
The main sources we used are represented by the direct genuine European Union primary
and secondary legislation, meaning the relevant articles from different Treaties and the directives
and regulations that are part of the acquis communautaire. Besides the European Union laws, we
also made use of cases from the European Court of Justice, of Romanian and Italian laws and of
a census made on the Romanian transnational migration with relevance for Romanians who go to
work in Italy. The whole legislation was available through the Internet sites, which represented
the basic important tool for finding all the relevant material in the matter. The novelty of the
paper lies in the very fact of the combination of Community, Romanian and Italian legislative
acts used with the view to understanding under which provisions the Romanian workers can go
to work in Italy and how Community legislation works in the area of the freedom of movement
of workers for its nationals and for the new members. This latter is of a particularly important
relevance, as Romania has to adopt the entire Community acquis of free movement of workers,
right of residence and the pursuit of employment activities, the recognition of higher-degree
diplomas and other professional qualifications, and the common immigration policies under the
justice and home affairs cooperation with the view to its integration into the European Union.
Thus, in short, the first chapter reveals the Community basic rights for the free movement
of workers for the Community nationals and is presented as a combination of articles from the
EC Treaty, with secondary legislation, meaning significant directives and regulations and
European Court of Justice (ECJ) cases relevant for the matters covered. The Treaties as primary
legislation are important as being the first basic “ideas” for the measures further undertaken for
directives and regulations, which most of them being “inspired” from the treaties, and especially
from the EC Treaty. The ECJ cases are important for showing the multitude and complexity of
situations of different EU nationals and third country nationals married to them that the Member
States could not foreseen when they made the Treaties and issued the secondary legislation. The
cases of those persons revealed also the problems and the shortcomings encountered by the
Member States in applying the EU legislation and the solutions found for them changed some
original legislative aspects creating new ones used as further rights.
The second chapter presents the Community legislative provisions for third country
nationals legally or illegally going to work in one of the Member States.
4
The main sources used for showing their possibilities to leave their state of origin and enter a EU
Member States where they could work are the Treaties again (especially the Maastricht Treaty),
directives and regulations again and some less usual forms of legislative acts, some with legally
binding power, as Action Plans, Decisions from the Council meetings, Council Resolutions and
Recommendations, Conventions, Commission’s Communications and Proposals not adopted yet.
The “literature” for third country nationals as secondary legislation is relatively new, especially
after the 1990’s, for the new flux of immigrants from the ex communist Eastern and Central
European countries.
The “fortress Europe”, how the EU is called, had to open its gates for the “cheap labor force”
offered by its immigrant who are ready to do whatever kind of low work that the EU citizens are
not willing to do anymore and thus gaining profits from the lower salaries paid to the
immigrants. After all, it is an advantage for the EU Member States. As far as the illegal
immigrants are concerned, there are a lot of policies against the illegal immigration and a set of
EU bodies that are responsible for the illegal immigration actions set in order to secure the
external EU frontier after the entering into force of the Convention implementing the Schengen
agreement. The disadvantage for the third country nationals in comparison with the rights for the
EU nationals, consist in (besides all the consular requests and other documents) the fact that
while the EU nationals can move freely and go to another Member State and stay for a period of
six months without being employed (the period allowed in searching for work) the third country
nationals depend on a job already found in order to go to work in the EU. And the right of the
third country nationals to be treated in the same way as the EU nationals (non-discrimination on
nationality grounds) is subject to the fact of being legally employed in that respective Member
State.
The third chapter is about the Romanians who go to work in Italy, about the original
provision that permitted the Romanian citizens to work in a EU state as Romanian being a EU
candidate, about who goes to work in Italy, the percentage of Romanians working there and the
regions from where they immigrate, the range of possibilities to find a job there, the documents
needed, the Italian annual decrees of fluxes and laws for the immigrants, the rights and
obligations for the Romanian immigrants in the Italian territory and the “advantages” for the
illegal Romanian immigrants there.
The methods used in this part are a combination of legislative acts, but this time of another
aspect, also with statistical data. The laws used refer to the Association agreement signed by
Romania with the view to joining the EU (law 20 from 1993), different Italian decrees of
immigrant fluxes (on the period 2000-2004, the last two important Italian laws on immigration
and their changes and relevance.
5
The non legislative materials refer to the more statistical sources as the census made by
sociology professor Dumitru Sandu on the Romanian transnational migration, the data from the
National Office of Labor Migration regarding the Romanian migration to Italy, some internet
research on firms/agencies offering jobs for Italy. The most interesting legislative sources were
the Italian annual decree of immigrant fluxes, showing the annual quotas fixed for the number of
immigrants accepted from different states, including those from Romania.
As for the other sources, the census made by Dumitru Sandu reveals the most desired
destinations for Romanians, the majority coming from the rural areas, the percentages of those
who go abroad to work and who come back, and especially the fact that those who got to work to
Italy are the largest number of Romanian immigrants who work abroad, excepting those from the
Magyar regions, but they have been excluded as having special ethnic connections with the
country of migration.
The fourth and the last chapter refers to the perspectives for the labor migration for the
new EU Member States and also for the candidate ones, and more exactly what will happen to
the workers from these states once the accession will be official. The sources used refer to EU
documents which explain the steps and the measures the old Member States adopted in relation
to the new comers. Contrary to what the common belief would be towards the work possibilities
for the workers from the new members, the accession to the European Union does not
automatically open the frontiers and the fifteen old labor markets for the new entered states. It is
a much more complex and complicated procedure, consisting in seven years of transitional
periods divided into three periods, of respective two, three, and two years during which the old
Member States can impose different restrictions on the new ten Member States regarding the
workers’ access of the latter to the labor market of the former. The restrictions can apply in
accordance to the duration of the three divisions of the transitional period, but they could also be
more spontaneous, such as a safeguard clause when a Member State (of the “traditional” fifteen
ones) can close its labor market for the new workers if their number brings prejudices to its labor
market. Each old Member State has more liberty to choose what policies to apply in the period of
the first two transitional years, after which each old Member State will inform the Commission
what it decide to do in the next three years period and the Council will decide what to do further
taking into account the Commission’s report. After the five years, the transitional period should
finish in practice, but the old members can ask the Commission for another two years only if
they experiences serious disturbances on their labor markets because of the new immigrant
workers. The restrictive measures cannot be more restrictive than those agreed upon at the date
of the signing of the Accession Treaties.
6
But the restrictions cannot apply anymore after the period of the full seven years and the labor
markets of the old members will automatically have to open for the new workers. In which
regards Italy, its intention is to apply the entire seven years transition period, but this intention
will depend on the Commission’s opinion and approval, consequently.
In short, these are the main aspects of this paper regarding the free movement of
Community workers and the treatment of third country nationals in the territory of the European
Union Member States that chosen to present. The novelty comes from the legislative perspective
from which the issue is seen, from the combination of the genuine different Community,
Romanian and Italian legislative acts. The challenge of the issue was to find out which are the
Community laws for third country nationals regarding the free movement of workers and if the
laws are applied to the Romanian citizens working in Italy. Further on, we will see more exactly
how things work, where the Romanian workers in the EU stand and how they will stand after
Romania’s accession to the EU.
7
Chapter I
1. FREE MOVEMENT of WORKERS in the EUROPEAN UNION
1.1 FREE MOVEMENT of WORKERS for the EUROPEAN UNION MEMBER STATES
1.1.1 General Provisions
The concept of the free movement of workers in the European Union is one of the most
complex and controversial ones, along with other domains such as the Union’s budget, the
system of taxation or the problem of subsidiarity. The complexity of this matter comes from the
huge amount of legislative provisions which are trying to regulate it, being in an almost
continuous transformation. The controversy is caused by the different national interests of the
Member States reflected in the difficulty in adopting certain measures to facilitate the free
movement of the EU workers, such as the recognition of higher-education diplomas or the
reluctance of some countries to give up the traditional visa and opening the borders, which
represent a physical barrier (the United Kingdom and Ireland). But before getting into details, it
is first necessary to establish the contextual framework of the issue, its evolution with the
different dimensions it acquired along time and finally the and the origins and meaning of the
concept with its concrete implications.
Thus, the free movement of workers is a part of the free movement of persons, which
represents one of the four fundamental freedoms of the originally common market, now the
internal market, along with the free movement of goods, capital and services. The
common/internal market is the core of the European Union around which all the other EU
policies developed, being included in the first pillar of the Maastricht Treaty. The evolution of
the free movement of persons was marked by four different dimensions starting from the
economic dimension, whereas the other three, meaning the social dimension, the political
dimension and the constitutional dimension, were gradually acquired later.
The economic dimension was the first effective meaning of the free movement of
persons. It was fully achieved in 1958 and it referred to the economically active people
1
, more
precisely the workers, services and establishment. The condition for the free movement of
workers was the ability to fully support themselves from the financial point of view, and thus
avoid becoming a burden for the host Member State.
1
Zaklina Novicic, Freedom of movement for persons in the European Union law,
http://www.diplomacy.bg.ac.yu/mpro2003ab.htm, accessed December 28 2003.
8
The free movement of workers is a special, separate chapter from the free movement of
people or from the rights deriving from the citizenship, and the provisions issued only for the
workers refer to the Community employment secondary legislation.
Further on, the social dimension came involving the social rights for the workers and
the members of the workers’ families who acquired the right to family reunification, fallowing
the worker in the Member State where they chose to work.
The third is the political dimension achieved in the 1990’s, which envisaged the freedom
of movement and residence for the non-economically active people, as students, retired
persons and self-employed, under the condition of having enough financial means to support
themselves.
And the last is the constitutional dimension which treated the free movement of persons
from the point of view of the EU citizenship, with the rights and obligations conferred to the EU
citizens, although the Article 17 of the EC Treaty specifies only the rights, but nothing about the
obligations. The EU citizenship does not substitute the national citizenship, it aims only at
complementing it and it is acquired automatically through the mere fact of being a citizen of a
EU Member State.
2
In the next part we will see the starting point in the free movement of
workers and the evolution of this idea in the main EU primary legislation.
The origins of the free movement of workers are to be found in The Treaty of Paris from
1951 establishing The European Coal and Steel Community which allowed the freedom of
movement in the Community for the workers of these two industries
3
and not to the whole
workforce: “Member States undertake to remove any restriction based on nationality upon
the employment in the coal and steel industries of workers who are nationals of Member
States and have recognized qualifications in a coalmining or steel making occupation,
subject to the limitations imposed by the basic requirements of health and public policy”
4
.
Further on, the idea oh the free movement of workers was developed in 1957 in the Treaty of
Rome (EC Treaty) which represented the basis of the European Economic Community:
“Freedom of movement for workers shall be secure within the Community. Such freedom
of movement shall entail 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.”
5
The next step towards the enhancement of the freedom of movement for workers was
The Schengen Agreement from 1985 originally signed by Germany, France and the Benelux
with the aim of gradually abolishing the controls at the common borders of the Community,
2
Art. 17 (ex Art. 8)(1) of EC Treaty.
3
Freedom, security and justice, http://europa.eu.int/comm/justice_home/fsj/citizenship/wai/fsj_citizenship_intro_en.htm,
accessed December 28 2003.
4
Art. 69(3) Treaty of Paris establishing the European Coal and Steel Community.
5
Art. 39 (ex. Art. 48)(1)(2) of the EC Treaty.
9
which meant the elimination of the physical barriers, and moved the checks to the external
frontiers. During the attempts to implement this Agreement, the Member States confronted
themselves with the difficulty of this matter and decided that further measures were needed in
the area of asylum, visas, cooperation related to police actions, justice, security. Therefore, there
was signed in 1990 a second agreement called the Convention Implementing the Schengen
Agreement which became effective from 1995, with Spain and Portugal joining the original
signatories. Today, all the EU Member States are part of the Schengen Agreement with the
exception of the United Kingdom and Ireland.
The Single European Act from 1986 amended the EC Treaty and contained provisions
establishing an area without frontiers with the abolition of checks at the internal custom
checks, regardless of the nationality. It also extended the right of residence in another Member
State to persons who did not have a job, but who could prove that they had enough financial
resources and a social insurance covered
6
. These provisions were implemented only in 1992.
But it did not mean that the controls at the frontiers have been completely abolished, they have
been transferred at the external frontiers of the Community, in order to secure and prevent it
from external dangers like immigration and organized crime. These latter provisions are better
materialized in the Maastricht Treaty on European Union from 1992 (which amended the EC
Treaty), where the Member States reaffirmed their objective “to facilitate the free movement of
persons, while ensuring the safety and security of their peoples, by including provisions on
justice and home affairs”
7
. In the social protection sphere the Treaty covers areas of common
interest as asylum policy, rules for persons crossing the external borders of the Union,
immigration, combating drug addiction and international fraud, ensuring judicial cooperation in
civil and criminal matters, customs operations and cooperation and police cooperation in
preventing and combating international terrorism, drug traffic through the special appointed
European police Europol.
8
An important aspect of this Treaty is the introduction of the European
citizenship in the area of Community policies, covering areas like to move and reside freely
within the territory oh the Member States but without any reference to an economic activity
9
. In
the same area of Community policies the free movement of workers is regulated through
progressive stages by issuing directives and regulations, the progressive abolition of restrictions
regarding medical and pharmaceutical professions
10
.
6
Freedom, security and justice, http://europa.eu.int/comm/justice_home/fsj/citizenship/wai/fsj_citizenship_intro_en.htm,
accessed December 28 2003.
7
Preamble, the Treaty on European Union (Maastricht Treaty).
8
Art. K1(1)(2)(3)(4)(5)(6)(7)(8)(9), the Treaty on European Union (Maastricht).
9
Ibidem, Art. G(C)(8)(a)(1).
10
Ibidem, Art. G(D)(10)(11)(13)(1)(3).
10
The Treaty of Amsterdam signed in 1997 amended the EC Treaty and the Treaty of
Maastricht and incorporated the Schengen Agreement. Among the four main objectives of the
Treaty the Member States placed the employment and citizens rights in the center of the Union
and reinforced the strengthening of the security and the removal of any remaining obstacles to
the freedom of movement
11
.
As we could see from this brief overview of the main events concerning the legal
provisions trying to regulate the freedom of movement for people, including workers, the issue at
stake is a very sensitive one. There was a need of many reinforcements and changes of this
matter which includes newer elements, like the treatment of third country nationals who want to
work on the territory of the Union, about visas, asylum and police policies, the recognition of
higher-degree diplomas and professional qualifications. And even now things are far from being
resolved, as some barriers still exist such as the danger to destabilize some national labor
markets. The complexity of the freedom of movement for workers can be seen also in the great
amount of EU legislation issued to regulate and facilitate this subject: treaties, amendments to
these treaties, agreements, the decisions of the Court of Justice, secondary legislation (directives,
regulations) issued by the Council at the recommendations from the Commission and the
approval from the Parliament. All the rules that are issued are part of the acquis communautaire
(the entire body of European Union laws), which covers four aspects of this area: the mutual
recognition of higher-degree diplomas and professional qualifications, citizens’ rights, free
movement of workers and coordination of social security schemes. Therefore it is prohibited any
national legislation contrary to the acquis. All Member States are obliged to transpose the
Community legislation into their national legislation, according to the terms of the respective
legal regulatory instrument.
11
Mastricht Treaty, Amsterdam Treaty, Nice Treaty, http://mis.ucd.ie/staff/bstahl/eur2001/maastricht_grainne.htm,
accessed December 28 2003.
11
1.1.2 Implementing the free movement of workers
Before getting into deeper details about the implementation of the free movement of
workers, lets see first the objectives and the implications of such a complex Community policy.
Thus, we can take into consideration two main kinds of objectives: of economic substance and
humanitarian reasons. In relation to the first ones, the Treaty of Paris and even the EC Treaty
have more an economic rather than a humanitarian way of understanding this matter. The
Community nationals were seen more as economic actors stimulated to respond to the
requirements of the employment market
12
or better productive forces being involved in the
productive process.
13
Later on the Community’s aims moved also towards the needs of its
individuals, attempting at increasing the workers’ chances of finding work and at developing
contacts between workers as a way of getting people closer, of creating cultural networks
between them. The concrete implications regard first of all the right to move and reside in
another Member State with the propose of paid employment and then areas of interest very close
to the freedom of movement for workers, such as the elimination of controls at the internal
frontiers-due to the Schengen Agreement and its provisions, the complex right of residence, the
right of the family members to join the worker, the right to remain for workers who have ceased
their occupational activity, the controversial problem of the recognition of higher-degree
diplomas, the problems derived from the implementation of the directives by the Member States,
the EU agencies promoting the freedom of movement for workers, statistics about this freedom
and not only. Having thus established the objectives and the implications of the free movement
of workers, in the fallowing part we shall try to see which were the principles that constituted
the basis of this freedom and the effective rights of the Community workers.
12
Freedom of movement for workers, http://www.europarl.eu.int/factsheets/3_2_2_en.htm, accessed November 23 2003.
13
Emiliana Baldoni, The Free Movement of persons in the European Union: A legal-Historical Overview,
http://search.yahoo.com/search?p=PIONEUR+EMILIANA+BALDONI&ei=UTF-8&fr=fp-tab-web-t&cop=mss&tab=, accessed
December 29 2003.
12
1.1.2.1 Rights and principles for the EU workers in short
First of all, it is very important to specify the fact that the right to free movement of
Community workers does not apply in a purely internal situation. But what does it mean? It
means that the Community workers cannot benefit from the rights of free movement of workers
if there is no cross border element. More exactly, if they remain to work in their country of
origin, they cannot by any means be under the EC legislative provisions for the mobility of
workers, but they are subject to the national legislation of their country of origin. So, in order to
activate the rights to free movement of workers and their implications the Community workers
have to go to another Member State to work.
1.1.2.1 A). The fundamental Community rights for workers
Thus, having the cross border element, the Community provisions apply to its workers
who benefit from the rights conferred to them by the EU primary and secondary legislation,
such as the right to leave, enter and reside freely in the territory of a Member State for the
purpose of work. The same rights to leave, enter and reside freely are also allowed for
establishment and the provision of services. But these rights are not absolute ones, as there are
some limitations to them, such as:
a). -limitations based on public policy, public security and public health;
-limitations in case of exercise of employment in public service and exercise of public
authority.
b). -limitations imposed by the condition of cross border element, where the rights are provided
by the primary and secondary legislation.
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