The Free Movement of Workers under Discussion within the Social Council

10 THs Fnnn MovsMENT or ^{WoRKERs UNDER} DrscussroN wrTHrN ^THE Socrer ^CouNCrL

Guus Heerma van Voss

1o.1 INrnopucrroN

The Dutch minister of ^Social Affairs ^and Employment, Lodewijk ^Asscher, will ^{chair the}

Social Council during the firsthalf of 20I6.One of the subjects of his closest attention will

be the free movement ofworkers, ^one ofthe basic freedoms of the European Union' There are two reasons for this.

In the first place, since the very beginning ^of his term, the minister has emphasised the need to tackle unintended negative side effects of the free movement of workers. The presidency gives him room to put this ^subject high on the social agenda of ^{the EU.}

A second reason for this is a result ofthe neg<ltiations between the EU and the United Kingdom on the terms of membership ofthe United Kingdom, in the face of an announced national referendum on continuation ^of this membership. Among ^the four critical points that are presented by the British prime minister David Cameron is one touching on the free movement of workers: the wish to reduce the social security rights of migrant ^workers from EU-countries.

In this chapter I will firstþ ^{discuss the} negative side effects of the free movement of

workers, as seen by Mr Asscher (Section LA.Ð. After discussion of the national solutions to tackle this problem ^{(10.3), the focus} will turn to the European solutions found so far (10.4) and those discussed for the future ^(10.5). Finall¡ the Brexit discussion will be examined (10.6).

to,2 Nncetrvr ^{Sros ErPBcrs}

In August 2}LS,Minister ^{Asscher published} an article with David Goodhart in British ^and Dutch newspapers on what they ^saw as some of the negative consequences of the free movement of workers within the European lJnion.l The ^{article uses} weighty words like

L. Asscher & D. Goodhart, 'So Much Migration ^{Puts Europe's Dykes in} Danger of Bursting', Independent, i8 August 2013, available at: <www.independent.co.uk/voices/comment/so-much-migration-puts-europes- dykesiin-danger-of-bursti ng-8772630.html> (last accessed on 5 February 2016);L.Asscher & D. Goodhart, 'code oranje voor vrij werkverkeer Binnen ^EIJ" De Volkskrønt,17 August ^2013.

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Guus Hnaame y¿rv Voss

'code orange', which is a term in use in the Netherlands for high alert in case of flood danger. In this article they mention the right to live _and work in other EU

of the founding _ideas in the r9s7 Treatyof _{Rome, one} that was rarely,*::ffiä::;

until the mid-2000s: in 2000 only about 0.1 per cent of EU citizens moved to u.rotrr.iit

country' Theyobserve thatthis _{situation changed} after2}}4,when newMemu.. stut.úi

central and Eastern Europe joined the European union. The effect, especially in the uK (that _along with Ireland and sweden, immediateþ allowed their citiz€rrs _âcc€ss to employment) _was rather dramatic with about 1.5m people arriving in the uK from _those countries in the following six years. since z}ll,all the other EU states have open.d;

too' with further significant flows from central and Eastern Europe into countries including Germany and the Netherlands.

In retrospect, Asscher and Goodhart argue that not enough thought was given to the scale of the flows' up until the mid-2000s, very few people took advantage of free movernent because the economic _levels of different EU countries _were similar. yet with *¡. u...rrioi

of the central and eastern European countries in the mid-2000s, a bloc of countries joined the EU (with _{a combined} population of around 80m) with a per capita income of only around a quarter _{of the} richer EU states. This has created a big incentive to move, at least

temporaril¡ especially for those in lower_skilled jobs.

Further _along in their article, the authors claim that this development _had a disruptive effect on some of our poorer and less well-educated _citizens in the richer EU states like the uK and the Netherlands. They _are competing against people with much lower wage expectations' They mention that, in the uK, about 2a per cent of all low-skilled workers are born outside the country and certain low-wag. ,.ltorr, such as hospitality and food manufacturing, are heavily dominated by people from poorer EU countries. In the Netherlands, workers from central and Eastern Europe make up 12 per cent of all employees in agriculture _and horticulture. _{Then they come} to their proposals: .we

a new settlement which is fair both to the people _of the sending countries _{and the receiving} need ones' And we need to stamp out abuse. workers from poorer EU countries _{are sometimes} taken advantage of by unscrupulous employers who win a competitive advantage over those who play by the rules. Too often workers receive low wages, work long hours and sometimes payhigh rents for terrible accommodation.'when we analyse this opinion, we can distinguish several aspects of the problern.

In the first place, the principle of free movement of workers _{can lead} to a displacement

oflocal workers' This is as such inherent to the principle _{of a &ee} labour market. If someone

can earn more in another EU Member _{State, he or she is free to} travel to that country and

to accept the job. It is partly the success of the European union that this has become pos-

sible' The _{cause of} the problem that is signalled _is basically that countries that are a far less

developed economicall¡ _{a result} of yrui, orb"ã (;;;"rist) governance, _{are accepted}

as new Member states of the European Union. This part of the problem _can only be

Tøn ^Fnzp, MovEMENT or ^{Wonxnns ulvDER} D¡scuss¡oN wrr¡trN rnn ^Soct,s,r CovNctt

redressed in two ways. One way is to only accept new Member States that have reached the ^average level of the economy of the existing Member States. The other solution is a

restriction ^{of the free} movement of workers. In the past, the solution has been that the free rnovement ^of workers was postponed during a transitional period. Maybe, this transitional

penodshould in ^{this case} (with the knowledge of today) have been made longer or should not have been fixed in advance. It is explainable, that that would have been discouraging for ^{the new} Member States, but maybe they should have been forced to accept it.

A second point is the fact that people make use of the free movement'who have lower wage expectations'. Basically, it ^is not clear what the authors mean bythis suggestion. Both the United Kingdom ^and the Netherlands have collective agreements as well as statutory rninimum ^wages. It seems to be a matter of enforcement of these instruments in order to prevent unfair competition ^between national citizens and employees attracted from new Member States. One could argue that an influx of alarge group of employees that is willing to accept lower wages could influence the bargaining position of unions, but that is an element of the free market. You cannot have your cake and eat it.

The third element in the discussion that has to be distinguished is the abuse of the weak economic position of foreign workers with low skills. Employers who do not live by the law can attract foreign workers to do the work under unlawful conditions. This is most of

all a matter of enforcement or adaption ^of national legislation. Abuse of labour legislation can take many forms. If a local employer does not follow ^the national legislation, it is pri- marily up to the national government to take steps to redress this. This is basically not a European problem. In the Netherlands, for instance, the Labour Inspectorate budget may be too low to intensively monitor the vulnerable sectors. However, in the light of this development, it would be wise to intensi$r the activities of this inspectorate in order to monitor the obedience of legislation in the field of health and safety, working hours and payment of minimum wage.

1o.3 N¡troN¡.r, Sor.urror.¡s

As noted above, part of the solution for the negative side effects of the free movement of

workers could be found in ^a better enforcement of national regulations. Minister Asscher has taken some measures to do this in the Netherlands. He has raised penalties for violations of labour regulation, appointed inspectors specialised in fraud with temporary employment agencies and improved the enforcement of ^{statutory minimum wage and collective}

agreements. The most important achievement in this respect was the enactment of the Labour Market Fraud ^(Bogus Schemes) Act that entered into force on I _|uly ^20L5.2

2 Wet øanpøk schijnconstructies, Staøtsblad2015,233. On the ministry's offìcial website the titel of the Act is translated as 'Act on Measures against Sham Employment Arrangements'.

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Guus Hnnau¿. ^y¿¡rr l4css

According to the ministry's official website, this act allows employees to claim outstand- ing wages not only from employers but also from their clients. The Social Affairs _and Employment Inspectorate publishes the names of companies that do not follow the _rules for minimum wages. The ministry gives the following explanation of the notion of _sharn employment arrangements. Employers sometimes use sham employment arrangements to avoid paymg minimum wages and collectively agreed wages. This puts employees at a

disadvantage. Some examples are:

money for meals, accommodation or health insurance is deducted from the minimum

wage;

fines for talking too loudly while working are deducted from the minimum wage;

a large amount in expense allowances is paid out as wages.

The Labour Market Fraud (Bogus Schemes) Act prohibits these arrangements as from

1 fanuary ^2016.

The reason to tackle sham employment arrangements is that they result in:

unfair competition between companies caused by cheap labour;

evasion of social insurance contributions byemployers who underpay;

displacement of Dutch workers by cheap foreign labour.

On I |uly ^{2015 the} first set of measures came into force under the Act. The following summary is given by the website of the ministry:

Employers and clients are both liable for paþg wages

Employees can now also hold their employer's clients liable for paying the wages they are entitled to. In the past, onlythe employer was liable. So employees now have more options for claiming outstanding wages.

Monitoring emplopnent practices and publishing names of companies

The Social Aflairs and Employment Inspectorate checks whether employers are follow-

ing the rules for minimum wages and collectively agreed wages. Companies that break

the rules may receive a fine or penalty. The inspectorate also publishes the names of

all companies that have been inspected. This includes companies that fail to follow the

rules.

10 ^{Tøe Fp.øn} MovEMENT op Wonxnns ^uND.ER D¡scuss¡oN wrrnrv THE SocLa.r Cou¡¡ctz

Exchanging information on employers

If the Social Affairs and Employment Inspectorate suspects that an employer is not complying with a collective agreement, it informs employer and employee organisations.

These organisations can then take action.

Establishing employee identity

At the request of the Social Aftairs and Employment Inspectorate, all employers must establish the identity oftheir employees and pass this information on to the inspectorate.

They are given 48 hours.to do so.

On ¹ January ²⁰¹⁶ the second set of measures came into force under the Labour Market Fraud (Bogus Schemes) Act. The following summary is given by the website of the ministry:

Employers pay fulI minimum wage

All arrangements by which employers pay less than the minimum wage will be prohib- ited. This includes wrongly deducting meal expenses or insurance contributions from

a person's wage.

Clear payslip

Employers must ensure that payslips are easy to understand for their staff. They must

also clearþ explain all the amounts on the payslip. The Social Affairs and Employment Inspectorate can fìne an employer if a payslip is incorrect.

Minimum wage paid through bank

Employers are no longer allowed to pay minimum wages in cash. However, if an employee earns more than the minimum wage, the additional amount may be paid out in cash.

Some comments have to be made on this information from the ministry. Making the 'client' liable for payment of wages is far more complicated than the short summary above suggests. If there is a chain of contractors, it is sometimes difficult to hold the responsible party liable for underpa).rng. Under traditional civil ^law, only the direct contractin gparty

is usuaþliable. However, it is not unusual in modern labour relations for the contracting partners to be in a'chain' of subcontractors. The Act now allows the employee to not only hold the formal employer liable for underpayrng, but also the promoter behind the formal employer. However, a chain of clients maybe much longer. The employee is not allowed to choose the most directly responsible client. He can only hold other parties liable (further

back in the chain) if it turns oiit to be impossible to hold the two closest parties liable. This

may take a long time. As a result, the Act will only provide marginal progress in the chances of the employee holding some party liable for underpa¡rment.

The background of the duty to pay the minimum wages via the bank may need some explanation. The idea is that this obligation will ^make it easier to identiff whether or not the minimum wage is being paid. The result is that if part of the minimum wage has been

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Guus Hnnntwe r¡a¡r Voss

paid in cash, the employer's obligation has not been frrlfilled. The historyof _the Actis clear about the status of the money paid in cash. One could say that, with _these the possibilities of enforcing labour rights under national lawhave notyet been In the Netherlands, for instance, an oft-heard criticism is thatthe Labour Inspectorate been downsized under previous governments, which makes it diffìcult to enforce labour has standards. The Member States of the European Union have very different _systems for enforcing labour law and can learn more from one another experiences.3

Lo.4 EunopeA.N Solurrolqs

The European approach of abuse of labour rights in the context of cross-border work _has mainly been focussed on the position of workers from low-wage countries _whose employers use the freedom of services to let them work temporarily in a foreign country below the conditions that are common in the country where the work is performed.

International private law determines the applicability of national labour protective _rules.

In the absence of a choice of law made by the contracting parties, the applicable conflict rule will lead to the habitual place of work or the place where the employee is engaged as

determining factor, which leads to the application of the løw of the country of origin.

During recent years a certain tension has become clear between the economic freedoms of the European Union and social rights of employees.n This issue has been highlighted

by the fudgment ^{of the European} Court of fustice in the Rush Portuguesø case.In this case a Portuguese construction firm worked in France and was fined bythe authorities because

it failed to pay a required 'special contribution'. The European Court decided that it is not allowed to subject the exercise of the freedom of services with special conditions, such as

the use of local personnel, the requirement of a special work permit or the papnent of a fee, to the national immigration office. But it ^also stated that EU law does not preclude Member States from extending their legislation, or collective labour agreements entered into byboth sides of industry to anyperson who is employed, even temporaril¡ no matter which country the employer is established in.s

This judgment of the EC] triggered the Posting of Workers Directive of 1996. The Directive makes the host Member State's hard core ofprotective employment rules appli-

3 ^See for a detailed study of the enforcement methods in Germany, the Netherlands and Sweden: M. Kullmann, Enforcement _of Labour Løw in Cross-Border Sítuatior¿s, Wolters Kluwer, Deventer, 2015.

4 ^{Simon Deakin,} 'The Lisbon Treaty, rhe Viking and Lavøl fudgments and the Financial Crisis: In Search of

New Foundations for Europe's "social Market Economy'", ln N. Bruun, K. Lörcher & I. Schömann (Eds.), The Lisbon Treaty and Social Europe, Hart Publishing, Oxford & Portland, Oregon 20L2, pp.l9-43; M.S.

Houwerzijl & T. Wilkinson, ^'The Effects of EU Law on the Social and Economic Goals of Europe 2020: A

DecÍsion Theoretic Approach to Wage Liability', German Løw Journø\, Vol. 10, 2013,p. 1983.

5 |udgmentof ²⁷ March 1990in CaseC-113/Sg,RushPartuguesaLímitødøv.OfficeNationald'Immigration

(Rush Portugesø), [L990) ECR I- ^1417.

to ^{Tna Fnnn} MovEMENT op WonxBRs ulvDER D¡scussroN wIT¡{/À¡ ran Soctet CouNctt

cable to workers posted from abroad. This includes specifically the minimum _wage and the minimum paid annual holidays.6 In this respect, the príncipte of the ptace af workpre-

vails, and to this extent, the principle of equal pay for equal work is realised. The protection of workers will take away the employer's competitive advantage, but is also criticised as

leading to protectionism.t

The discussion has been further fired by the judgments _{of the} European Court of |ustice

in the Løval and Rüfferf cases. In the Laval case, a Latvian construction firm sent its employees to a Swedish daughter company to let them do construction work in Sweden against salaries at Latvian level, much beneath that of the Swedish collective agreement for that branch. The Swedish union picketed the worksite in order to prevent that. The EU Court held that the freedom of services as well as the Posting of Workers Directive preclude a trade union from attempting, by means of collective action in the form of ^a blockade of sites, to force a provider of services established in another Member State to

enter into negotiations with it on the rates of pay for posted workers and to sign a collective agreement with terms that lay down more favourable conditions than those resulting from the relevant legislative provisíons.8

In the Rüffert Case the legislation of the German State Niedersachsen had required the contracting authority to designate as contractors for public works contracts only contractors that, when submitting their tenders, agree in writing to pay their employees, in return for performance of the services concerned, at least the wage provided for in the collective agreement. The EU Court decided that a Member State is not entitled to impose on com- panies established in other Member States a rate of pay provided for by a collective agree- ment in force at the place where the services concerned are performed and not declared to be of general application.e

In these cases, it became clear that the right to strike could not be used to force foreign employers to obeythe domestic collective agreements. Member States are also not allowed to enforce the application of collective agreements by tender requirements. In both cases

it must be noted that legislation or collective agreements that extended law to the whole branch can be enforced. The problem mainly occurs in countries like Sweden where col- lective agreements are traditionally obeyed within the customs of the system of collective labour relations rather than by public law. The decisions of the European Court of _Justice may force these countries to introduce a system of public enforcement of collective agreements in order to maintain their standards, only because of European law. This is

6 Directive 9617llEC of the European Parliament and of the Council of 16 December i996 concerning the posting of workers in the framework of the provision of services, OI 1997 L 18/1.

7 K. fuesenhuber, Europeøn Employment Løw: A Systematic Exposition,Intersentia, Cambridge, 2012, p. 197 .

8 Judgment of ¹⁸ December 2007 in Cøse C-341/05, Laval un Pørtneri v. Svenskø Byggnadsarbetøreförbundet, Svenska Byggnødsarbetareþrbundets avd. 1, Byggettan, Svenskø Elektríkerþrbundet (Løval), _[2007] ECR I-

11767.

9 Judgment of 3 April 2008 in Cøse C-346/06, Dirk Rüfert v. Lønd Niedersachsen (Rüffert), [2008] ECR I- 1989.

Gvus Hnenm¡ v¿rv Voss

one of the reasons why the decisions of the Court are complex and severely criticised, especially in labour circles.

The reaction on the continuingproblems ^{of enforcing} collective agreements, especially

in the construction ^{sector, has lead} to the adoption of the Enforcement Directive.to This Directive aims to promote a better enforcement of the Posting of Workers Directive.

According to ^the officiat announcement of the European Commission, the F.nforcement Directive will help to ensure that these rules are better applied in practice, especially in some sectors such as construction and road haulage, where for example so-called 'letter box' companies (without any real economic activity in their 'home' country) use false 'posting' to circumvent national ^rules on social security and labour conditions. It will _also improve the protection of posted workers' rights by preventing fraud, especially in subcon- tracting chains where posted workers'rights ^{are sometimes not respected.}

In particular, according to the European Commission, the Enforcement Directive:

increases the øwøreness of workers and companies about their rights and obligations

as regards the terms and conditions of employment;

improves cooperation between nøtional authoritíes in charge of posting (obligation to respond to requests for assistance from competent authorities ^of other Member States

- ^a two working day time limit to respond to urgent requests for information and a25 working daytime limit for non-urgent requests);

clarifies ^the definition of posti,4gso as to increase legal certainty for ^posted workers and service providers, while at the ^same time tackling rletter-box' ^companies that use posting to circumvent the ^law;

defines Member States' responsibilities to verify complíance with the rules laid down

in the ¹⁹⁹⁶ Directive (Member States designate specific enforcement authorities responsible for verifring compliance; and where ^service providers are established, Member States need to take necessary supervisory and enforcement ^measures).

On the brink of the Dutch presidenc¡ in _January 20L6, the Member States are working on the transposition of the Enforcement Directive into their national ^law. But the discussion on the issue has not stopped. Especially the limited reach of the Posting of Workers Directive (that only guarantees the minimum wage) is still being discussed. Unions promote the extension of the princþle to equal pay for equal work in ^general, which includes the concept that ^the whole range of wages, at least the fuIl content of collective agreements, should be based on the principle of the place of work.

10 Directive 2014167lEtJ of the European Parliament and the Council of tS May 2Al4 on the enforcement of

Directive g1lTLlEC concerning the posting of workers in the framework of the provision of services and

amending Regulation (EU) No 102412012 on administrative cooperation through the Internal Market

Information System ('the IMI Regulation'), OI 2A14L L59l1l.

10 Tn z ^Fnna MovEMENT op Wonxnns uÀrDER D¡scuss¡orv wrrr¡rN rn n So c tdt Covwctt

Lo.j DrscussroN DURTNc rrrn Durcrr Pnssronxcy

In ^{May 2014,} Minister Asscher wrote a second article in the same newspaper in which he had published his 'Code Orange' article with David Goodhart. He admitted that it was thought that in his earlier article he was picking on Bulgarians, Poles, and Romanians. He now wrote that was not the case. In his view, he was not attacking migrant workers, but defended them. He was not promoting measures to stop people, but ^measures that stop abuses. It is in everybody's interest to fight exploitation and to promote fair work for a decent wage. His proposal is to oblige employers to not only provide equal pay for equal work, but to also level other working conditions. The more the working conditions of

posted workers resemble those of other employees, the fairer the competition is on the labour market. He also proposed putting an end to 'letter box companies' that only move

to another country on paper so that they can continue their operations in the home country with lower labour costs. Chain responsibility should be extended from the con- struction sector to others, in particular agriculture and transport. For domestic transport, equal wage should be paid, no matter who drives the truck. His reasoning is that those who want to maintain the advantages of free movement - ^{and that is} what he wants - ^will

have to attack unfair competition and improper replacement with tough and clear measures.

Cross-border abuses cannot be dealt with by countries on their own. EU Member States must combine their knowledge _and forces.ll

The Dutch presidency allows Mr Asscher to put his proposals on the agenda of the Social Council. This is also his intention: 'to _combat unfair competition on terms of employment and promoting a level playing field is one of the most important issues during the Dutch presidency.'l2 Initiaþ, he seemed to stand alone in calling for changes to the Posted Workers Directive. But on ¹⁸ |une ^{2015, he sent his ideas} in a letter co-signed by six other countriesl3 to Employment Commissioner Marianne Thyssen. The seven govern- ments want to see fair rules on posted workers in the EU.

The ministers argue that the character of posting has been evolving in recent years.

They fear that services of a temporary nature without presence on the domestic labour market may in some cases have transformed into services of semi-permanent nature with

a real and lasting presence on the domestic labour market. The current system may be used to reduce the costs of labour and to gain a competitive edge in the market. The seven

11 L. Asscher,'Stop Oneer$ke Concurrentie en Verdringing', De Volkskrønt,9 May 2014, available at:

<www.volkskrant.nl/opinie/asscher-stop-oneer$ke-concurrentie-en-verdringin g-a365L7751> (last accessed on 5 February 2016).

12 Letter from the Minister of Social Affairs and Employment to the Dutch House ofRepresentatives ⁽¹ October 2015), Kømerstukken II2015116, 17 050, no. 522, p.5.

13 The letter was signed bythe Labour ministers of Austria, Belgium, France, Germany, Luxembourg, the Netherlands, and Sweden.

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Guus Hnznute rzarr¡ Voss

ministers suggest that widening the scope and amending provisions regarding the working and social conditions that are applicable to posted workers should be considered.

They also advocate equal pay for equal work in the same place. 'The free movement of

workers must go hand in hand with better protection of workers,'Mr Asscher said. Mr

Asscher hopes the Commissioner will act swiftlyto adapt the Directive. It helps that many other countries support this aim. It will also put the spotlight on decent work during _the Dutch presidency of the EU Council of ministers in 2016.

However, a reaction came in a letter from nine ministers from Central and Eastern European countries.ln In light of the recent adoption of the Enforcement Directive, they

see a revision of the Posted Worker Directive as premature. Besides, they fear the under- mining of fundamental EU principles, including freedom of services. They also warn that the social security rights of posted workers could be endangered. It is obvious that they are also defending the presently advantageous position of service providers from their countries in the competition for work in countries with higher labour costs. The two positions are conflicting and it will be up to the Dutch presidency to find a common position on the issue.

ro.6 Tnn Bnexrr DrscussroN

Another important issue during the Dutch presidency will certainly be the negotiations with the United Kingdom on'a new settlement for the United Kingdom in a reformed European Union'. This is the title of a letter from David Cameron sent on l0 November 2015 to Donald Tusk, the president of the European Council, in which he formulates his concrete ideas. Under the general term 'flexibility', _the British prime minister presents four proposals for reform. Besides economic governance, competitiveness, _and sovereignty, the fourth item is immigration.

Under this heading, Mr Cameron argues that the pressures that free movement can

bring are presently too great. The issue is one of scale and speed. Britain's population _is expanding and it is not sustainable. It has taken many steps to control immigration from outside the EU. But it needs to be able to exert greater control on arrivals from inside the EU too. The current very high level of population flows from within the EU into the UK were unplanned and are much higher than forecast - ^{far higher than} anything the EU's founding fathers ever envisaged. He feels that we need to ensure that when new countries are admitted to the EU in the future, free movement will not apply to those new members until their economies _have converged to become much closer to those of existing Member States.

14 This letter was signed by the Labour ministers of Bulgaria, the Czech Republic, Estonia, Hungary Latvia,

Lithuania, Poland, Romania, and Slovakia.

70 ^{Tøn Fnnn} MovEMENT op Woarzns u ^ID-ER Drscuss¡oN wrrrrrr rnn Soct¡t CouNctt

Mr ^{Cameron also} wants to crack down on the abuse of free movement, and notes wide support in discussion with colleagues on this point. In this respect, he mentions tougher and longer re-entry ^bans for fraudsters and people who collude in sham marriages. It

rneans addressing the fact that it is easier for an EU citizen to bring a non-EU spouse to Britain than it is for a British citizen to do the same. It means stronger powers to deport crirninals ^{and stop} them from coming back, as well ^as preventing entry in the first place.

He finally states that we need to go further to reduce the numbers coming here. He wants to reduce the flow of people coming from within the EU by reducing the draw out that our welfare ^{system can} exert crossing Europe. So he proposes that people coming to Britain from the EU must live in the UK and contribute for four years before they qualiff for in-work ^benefits or social housing. And that we should end the practice of sending child ^benefits overseas.rs

By developing his immigration point, Mr Cameron tackles a completely different aspect ofthe ^free movement ofworkers than Mr Asscher does. His target is not so much the abuse offree movement by employers harming employees, as is the case in Mr Asscher's proposals, but rather the abuse of free movement by citizens from other EU countries harming the interests of the UK. Nevertheless, although brought primarily as serving the specific interests of the United Kingdom, he touches on problems of a kind that more countries have to deal with. But a common element with Mr Asscher's case presented is the strong contrast of interests between the western and the eastern part of Europe. The Western European countries have expensive welfare states that are under pressure from the economic crisis ofthe last decade. Their populations are keen to defend their welfare benefits, though they have already had to accept major cuts because of economic problems. In this atmo- sphere, the flow of people from Central and Eastern Europe to Western Europe after the accession of their countries to the EU in 2004 is followed critically. Though the foreign workers came in order to improve their working conditions, their presence has also led to

a higher consumption of social benefits by them. It is easier for governments in Western Europe to sell to the public a cut in welfare benefits for these new immigrants ^(who usually do not vote in their elections) than cuts their indigenous population. On the other hand, the governments of central and eastern European countries have reason to defend the interest of their citizens, even when theywork abroad. A cut in social security expenditures in the western countries at the cost of eastern European immigrants will give them the feeling that - ^{even 10 years} after acquiring EU membership and in spite of working sometimes under difficult conditions in a foreign country - ^{they are still not fully respected}

as EU citizens.

15 Many of these proposals on immigration were already raised in Cameron's EU migration speech of

28 Novembet 2014, available at: <www.bbc.com/news/uk-politics-30250299> (last _accessed on 1 February 2ot6).

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Guus Hnnnm¿. ^v¿,¡v Voss

A European Council study on foreign relations regarding ^the position of ten Member States towards the British proposals showed that these proposals are strongly opposed by the two involved central and eastern European countries, namely Poland and Bulgaria.

But other countries, too, are not keen on the proposals. In France the equality among European citizens is considered important. Germany opposes any limitatiorì of the _free movement of people. In some countries it is not so much an issue (Denmark, Italy). _Some countries think the British could strengthen the internal rules on their own (Ireland, Sweden) and others are not against ^a discussion, but ^do not want to introduce discrimina.

tion between British and other nationals ^(the Netherlands, Spain).16

It seems to me that the matter is perfectly open for negotiation. It is not likely that _the countries will agree on a change of EU treaties. There is fear that one or rnore countries could block the treaty changes, albeit as result of a referendum. This type of change will

also take too long, while Mr Cameron does not have that much time since he intends to hold the referendum during his present term. A treaty change is in practice onlyuseful in

case of principal changes in the structure of the EU. The British may consider their wishes as principal, but they have formulated them ^such that there is room for negotiation _on

changes in the secondarylegislation ^as well as policy statements.rT

With regard to the specific proposals on free movement of persons: in spite of the principal positions of some countries, it is quite likely that they can find compromises.

Part of the reason for this ^is that some other countries share some of the UK's wishes.

Besides that, many countries have great interest ^(at least for economic and geopolitical reasons) in keeping the UK in the EU. Is the waiting period for foreign workers before they can receive benefits or housing really ^a princþal case? And everything has its price.

In this light, it was remarkable to see that the Polish government hinted early ]anuary 20t6 that it could accept reductions in welfare entitlements of Polish citizens abroad as trade

offfor a stronger NATO presence on their territory in order to prevent possible Russian aggression.

L6 M. Leonard, 'Britain in the EU Renegotiation Scorecard', European Council on Foreign Relations, London, September 2015, available at: <wwwecfr.eulpagel-/Britain-in-the*EU-scorecard.pdf> ^(last accessed on

1 February 2016).

17 Damien Chalmers argues that many of the prime minister's individual reform proposals could either be achieved by chenging EU legislation or domesti claw. See D. Chalmers, 'What Are the Legal Implications of

David Cameron's Demands for EU Migration Reforms?', Open Europe London,December 2074, avalTable

at: <http://openeurope.org.uk/intelligence/immigration-and-justicellegal-implications-david-camerons-

proposed-reforms-eu-migration/> (last accessed on 1 February 2016).

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The conclusion of this contribution is that the free movement of workers will be at the centre of the discussion within the Social Council during the Dutch presidency of the EU Council. There will be a discussion on tackling the abuse of rights of cross-border workers focussing on a revision of the Posted Workers Directive. And the Brexit discussion will

shine a light on the welfare rights of workers who move to other Member States. A common element in these discussions is that there may be a diversion of interests between the western and eastern part of Europe. This is not so strange, because both parts still have very different levels of economic development and social welfare spending - ^{ten years after} the accession of the new Member States to the Union. To tear down this invisible wall within Europe may become an important task for politicians of this era.

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