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European Union; Spain: Temporary Limitation of Free Movement of Romanian Workers

(Aug. 17, 2011) On August 11, 2011, the European Commission allowed Spain to temporarily restrict the access of Romanian workers to its labor market. (2011/503/EU: Commission Decision of 11 August 2011 Authorising Spain to Temporarily Suspend the Application of Articles 1 to 6 of Regulation (EU) No 492/2011 of the European Parliament and of the Council on Freedom of Movement for Workers Within the Union with Regard to Romanian Workers [hereinafter Commission Decision], OFFICIAL JOURNAL OF THE EUROPEAN UNION (OJ) (L207) 22 (Aug. 12, 2011).) The decision involves one of the four fundamental pillars of the European Union, that is, the free movement of people within the territory of the 27 EU Member States and the right of the EU Member States to curtail such freedom of movement on certain grounds. This right of free movement – which in general permits workers to look for employment in another Member State without a work permit and also to reside there – is protected in articles 45 and 46 of the Treaty on the Functioning of the European Union. (See consolidated version of the Treaty, OJ (C83) 47-199 (Mar. 30, 2010).)

This right is furthermore provided in Regulation No. 492/2011, adopted in April 2011, which replaces the 1968 Regulation on Freedom of Movement of Workers Within the Union and establishes the requirements and conditions of the exercise of the right of free movement. (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 [hereinafter the Regulation], OJ 2011 (L14) 11 (May 27, 2011).)

Based on articles 1-6 of the Regulation, nationals of a Member State, regardless of place of residence, have the right to seek employment in another EU Member State, without being subject to discrimination and with the same priority as nationals of that state. EU Member States are not permitted to restrict this right by law, regulation, or administrative action or to impose requirements not applicable to their own nationals. (Id.)

The Act of Accession to the EU for Romania, adopted in 2005, established transitional provisions for workers. Romania eventually joined the EU on January 1, 2007. EU Members had the right to defer full access to their labor markets by Romanian workers for a seven-year period, to 2014. The Act of Accession also contained a “safeguard clause” that gave EU Members the right to re-introduce restrictions, if that Member were experiencing or anticipating serious “labor market disturbances.” (Press Release, The Commission Accepts That Spain Can Temporarily Restrict the Free Movement of Romanian Workers, MEMO/11/554 (Aug. 11, 2011), EUROPA.)

Currently, Romanian workers have access to the labor market in 15 of the 25 EU Member States other than Spain and Romania (Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Greece, Finland, Hungary, Latvia, Lithuania, Poland, Portugal, Slovakia, Slovenia, and Sweden). The other EU Member States (Austria, Belgium, Germany, France, Ireland, Italy, Luxembourg, Malta, the Netherlands, and the United Kingdom) still maintain work permits for such workers, with some adjustments. (Id.)

Spain opened its market to Romanian workers on January 1, 2009. However, following the global economic downturn of 2008, Spain began experiencing serious disturbances in its labor market, especially an unemployment rate in excess of 20%. (Commission Decision, supra.)

On July 22, 2011, Spain notified the European Commission of its decision to take immediate measures to reintroduce restrictions because of its domestic economic crisis. In connection with this crisis, on July 28, 2011, Spain requested that, with regard to Romanian workers, the Commission suspend articles 1-6 of the Regulation. (Id.)

The Commission Decision adopted on August 11 authorizes Spain to temporarily suspend the application of articles 1-6 of the Regulation until December 31, 2012. (Id.) The Commission based its decision on an analysis of economic data indicating that Spain was facing a serious labor market disturbance that was reflected in its having the highest unemployment rate across the EU, “particularly dramatic unemployment among youth and a slow economic recovery.” (Id.) The decision does not affect Romanian workers who are already employed in Spain and those who are registered as job seekers by the Public Employment Services in Spain. (Id.)