European Union/Czech Republic: Freedom of movement, residency and social security regulations for European Union (EU) nationals who move to other EU countries; the situation of Czech nationals who move to other EU countries, including labour rights and access to social services
|Publisher||Canada: Immigration and Refugee Board of Canada|
|Author||Research Directorate, Immigration and Refugee Board of Canada, Ottawa|
|Publication Date||5 March 2009|
|Citation / Document Symbol||ZZZ102984.E|
|Cite as||Canada: Immigration and Refugee Board of Canada, European Union/Czech Republic: Freedom of movement, residency and social security regulations for European Union (EU) nationals who move to other EU countries; the situation of Czech nationals who move to other EU countries, including labour rights and access to social services, 5 March 2009, ZZZ102984.E, available at: http://www.refworld.org/docid/4a7040a223.html [accessed 23 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Directive 2004/38/EC and its application
The right of free movement within the European Union (EU) for EU citizens and their families is established by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (EU 10 Dec. 2008). The Directive outlines the administrative rules governing the free movement of EU citizens, allows for their permanent residence in a host member state after five continuous years of residency, and provides for family reunification rights (including those of common-law partners) under specific circumstances (ibid.). EU Member states were required to integrate the provisions of Directive 2004/38/EC into their national legislation by 30 April 2006 (ibid.).
A 2008 evaluation of the implementation of the Directive was conducted by the European Commission (EC), and concluded that "[a]lthough national laws in some areas treat EU citizens and their families better than EU law requires, not one single Member state has transposed the Directive effectively and correctly in its entirety" (ibid.). The evaluation identified "persistent violation[s]" related to "the right of entry and residence of third country family members" and "the requirement for EU citizens to submit with the applications for residence additional documents not foreseen in the Directive" (EU 10 Dec. 2008).
Movement and residency regulations
According to Article 6 of Chapter 3 of Directive 2004/38/EC, EU citizens "shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport" (EU 30 Apr. 2004). Article 7(1) of Chapter 3 specifies that EU citizens may remain in another Member State for periods exceeding three months if they:
are workers or self-employed persons in the host Members State; or
have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State ... ; or
- are enrolled at a private or public establishment ... for the principal purpose of following a course of study, including vocational training; and
- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority ... that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). (EU 30 Apr. 2004)
Similarly, the following information, attributed to Elspeth Guild of the Brussels-based Centre for European Policy Studies (CEPS), is provided in a 2008 report by the International Organization for Migration (IOM) entitled World Migration 2008: Managing Labour Mobility in the Evolving Global Economy:
All EU nationals are entitled to move freely among the Member States without visas or other pre-entry conditions. They are entitled to remain on the territory of any other Member State for a period of not more than three months without further formalities and longer if they are self-employed, service providers or recipients, or as students, retirees or economically inactive persons, provided they produce evidence of sufficient independent means and will not have to rely on the social security/welfare system of the respective EU host country. (IOM 2008, 365)
The 2008 evaluation by the European Commission notes that the majority of Member States have properly implemented Article 7(1) on the right of EU citizens to reside in another Member State for over three months, and that Estonia and Spain "do not even require EU citizens to meet any of the [four] conditions set out in Article 7(1) [outlined above]" (EU 2008, 5). Estonia and Spain impose no requirements other than EU citizenship (ibid.).
Article 16 of Chapter 4 of Directive 2004/38/EC, which deals with the general rules regarding permanent residence, provides that EU citizens who have resided legally in another Member State for five consecutive years have the right to permanent residence in that state (ibid. 30 Apr. 2004). The European Commission notes that some states – such as Belgium, Hungary and the United Kingdom (UK) – "incorrectly" applied certain aspects of Article 16 of the Directive (EU 2008, 7).
Social security regulations
Article 24(2) of Chapter 5 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 states that
the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence, ... nor shall it be obliged, prior to the acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families. (EU 30 Apr. 2004)
In a 2005 EU guide entitled "Living, Working, Studying in Another EU Country – An Overview of Your EU Rights," the following information on social security is provided in the section on working in the EU:
EU rules ensure that you are affiliated to a single social protection scheme and that you lose none of your rights (particularly with regard to retirement).
In principle, you are insured in the country you work in. You, and in certain circumstances, your family, are entitled to the same social security and welfare benefits as nationals of the host country. These rights cover sickness and maternity benefits (healthcare and financial benefits), disability, old-age and widow's/widower's benefits, benefits payable for accidents at work, occupational illness, death and unemployment, as well as family allowances. You must also pay the same contributions as nationals of the host country.
However, there are special rules for cross-border workers and workers on temporary postings. (EU 2005 [emphasis in original]; see also Euro-graduate Live n.d.)
The same guide provides the following information on social security in relation to studying in Europe:
You must be covered under a healthcare scheme, either personally or as a family member, in the home country or the country where you are studying, depending on the conditions set under national law. EU rules give you some social security protection, particularly as regards healthcare, on certain conditions. (EU 2005)
According to the European Commission, in order to benefit from unemployment insurance, applicants must satisfy their host country's rules regarding access to unemployment benefits, and they must have some work experience in the host country before applying (EU n.d.d). Where the payment of unemployment benefits is contingent upon a period of employment or insurance coverage, "such periods which have been completed in one or more other Member States must also be taken into account" (ibid.).
EU citizens have the right to transfer their unemployment benefits to another Member State for three-months' time if they satisfy the following conditions:
[they] have been receiving unemployment benefits for at least four weeks in the country [that they] are leaving. This period can be shortened, however, by the unemployment service concerned;
[they] apply to the competent institution for Document E 303;
[they] register with the employment services in the country [that they] have moved to within seven working days of [their] arrival;
[they] comply with the control procedures organized by the Member State where [they] are residing. (EU n.d.d; see also Eurograduate Live n.d.)
The situation of Czech nationals who move to other EU countries
The Czech Republic became a member of the EU in 2004 (EU n.d.a). As well, in December 2007, the Czech Republic became a member of the Schengen Agreement (US 11 June 2008; EU 8 Dec. 2007). The Schengen agreement is a 1985 convention initiated by five EU Member States (Belgium, France, Germany, Luxembourg and the Netherlands) with the purpose of creating a common free-movement zone with no internal borders (EU 4 Apr. 2008). This zone, known as the "Schengen area," has gradually grown to include all EU states (except Bulgaria, Ireland, Romania and the UK) in addition to three non-EU countries (Iceland, Norway and Switzerland) (Czech Republic N.d.), installing "effective controls at the external borders of the EU" and introducing a common visa policy (EU n.d.b). Besides the abolition of internal borders, Schengen member states coordinate the policing of external borders (EU 4 Apr. 2008).
The United States (US) Overseas Advisory Council's Czech Republic 2008 Crime and Safety Report states that "[t]he Schengen Agreement allows people inside the Schengen zone to legally move freely without being stopped at national borders" (11 June 2008). Czech Radio and the official government website of the Czech Republic indicate that, despite Schengen rules, Czech nationals have been subject to road and border checks in Germany and Austria (Czech Radio 16 May 2008; Czech Republic 20 May 2008).
The World Migration 2008 IOM report provides the following information on the labour rights of the states that joined the EU in 2004:
For the nationals of eight of the ten 2004 accession states (i.e., the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, collectively referred to as "A8 states"), the right to employment and to remain in the country to work has been limited, though not for Cyprus and Malta. Thus, "A8" nationals are subject to a gradual labour market liberalization scheme under which pre-2004 Member States (the former EU-15) are entitled to restrict labour market access in their regard for an initial two-year period and, subject to notification, for a further three years. In the presence of serious disturbances in a Member State's labour market, these restrictions may be extended for a further two years. However, A8 workers who have completed twelve months or more of lawful employment in a Member State acquire full Treaty Rights and are no longer subject to the transitional provisions. (IOM 2008, 366)
According to a lecturer at the University of Liverpool who has authored several studies on migration issues within the EU (University of Liverpool n.d.; Lecturer 17 Dec. 2008), the situation
is constantly evolving as a consequence of time-limited transitional arrangements which grant the older Member States discretion to put in place national measures to govern the labour market access rights of EU nationals. The application of these transitional arrangements means that currently legal rights of Czech nationals differ from Member State to Member State. In 2011, the transitional arrangements will expire, and legally, the position of EU8 national migrants in the EU will equalise with that of migrants from the older Member States. (ibid.)
In the meantime, the Canadian mission to the EU has summarized, in a table attached to this Response to Information Request, the restrictions imposed by EU countries on workers from the newer Member States, including the Czech Republic (Canada 2008). The summary, which is based on information from the European Commission, shows that Czech citizens may work in Finland, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom (UK) (ibid.). However, Czech workers are restricted from working in Austria, Belgium, Denmark, France and Germany until 2011 (ibid.; see also Migration News July 2008). According to the chart, Belgium and Denmark will be open to Czech workers as of May 2009 (Canada 2008). Czech workers are restricted from working in France except for individuals who work in "health care, transport construction, hotels and catering" (ibid.; see also Migration News July 2008). This was corroborated by information from the Ministry of Labour and Social Affairs as cited by the Czech News Agency (?eská tisková kancelá?, CTK), which indicated that in 2008 Czechs required work permits for Austria, Belgium, Denmark, France and Germany, as well as non-EU countries such as Liechtenstein, Norway and Switzerland (CTK 21 Apr. 2008).
In a 2007 paper entitled "Citizenship in the Context of EU Enlargement: Post-Accession CEE [Central and Eastern European] Migrants as Union Citizens," the Lecturer from the University of Liverpool argues that "less wealthy EU8 and EU2 [Bulgaria and Romania] nationals will find it difficult to establish a right to reside in the EU15 longer than the initial three-month period of grace granted to all citizens under Directive 2004/38" due to transitional restrictions imposed by EU15 Member States (Currie 2007, 26).
According to an article appearing in Aktualne.cz – an Internet news site operated by Centrum Holdings, a net media company – Czechs who encounter problems related to their residency or social-security rights in other EU countries may file a complaint with one of three agencies: the European Commission, a Czech Court or a SOLVIT Centre (Aktualne.cz 9 Aug. 2006). The website notes that filing a complaint directly with the European Commission or instead with a Czech court – both of which may lead to legal proceedings before the European Court of Justice – may be time-consuming and/or costly (ibid.).
A faster alternative is to complain to a SOLVIT Centre (ibid.; EU n.d.c). SOLVIT is an Internet-based "problem solving network in which EU Member States work together to solve without legal proceedings problems caused by the misapplication of Internal Market law by public authorities" (ibid.). In operation since July 2002, SOLVIT is coordinated by the European Commission but operated by Member States; its target deadline for resolving a complaint is 10 weeks (ibid.). Further information on SOLVIT, including instructions on how to file a complaint, is available on the SOLVIT website (ibid.).
Citing a report published by the Labour and Social Affairs Ministry, CTK indicates that some 76,000 Czechs worked in twenty European countries in 2007 (CTK 21 Apr. 2008). As of March 2008 approximately 43,000 Czechs were reportedly working in the "15 old member states of the European Union" (Czech Republic 26 Mar. 2008). The greatest number of Czechs worked in the United Kingdom and Germany (ibid.; CTK 21 Apr. 2008). Of the 76,000 Czechs working in European states in 2007, CTK notes that some 30,000 worked in Britain (compared to 17,500 in 2005), 13,600 worked in Germany (compared to 2,000 in 2005) and 12,000 worked in Ireland (three times higher than the previous year) (ibid.). In addition, there were 5,300 Czechs working in Austria, 4,000 in each of Italy and Switzerland, 2,800 in Spain, and 1,200 in each of the Netherlands and Slovakia (ibid.). A study published by the Research Institute for Labour and Social Affairs indicates that Czechs working abroad tend to be young men with a university degree or high school diploma (Czech Republic 26 Mar. 2008).
Further or more recent information on the situation of Czech workers in EU Member States could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
Information on the situation of Czech nationals who access social services in other EU countries could not be found among the sources consulted.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Aktualne.cz. 9 August 2006. "Cesi si nedají líbit diskriminaci v EU."
Canada. 2008. Canadian Mission to the European Union, Brussels. Correspondence received from an official.
Ceská tisková kancelár (CTK). 21 April 2008. "More than 76,000 Czechs Work in 20 European States in 2007." (Factiva)
Currie, Samantha. 2007. "Citizenship in the Context of EU Enlargement: Post-Accession CEE Migrants as Union Citizens."
Czech Radio. 16 May 2008. Ruth Frankova. "Czech Drivers Complain of Discrimination in Schengen Controls."
Czech Republic. 20 May 2008. "Border Checks in Germany and Austria Despite Schengen."
_____. 26 March 2008. Ministry of Foreign Affairs. "Czechs Working Legally in Old EU Countries Number 43,000."
_____. N.d. "Basic Facts about Schengen."
Eurograduate live. N.d. Emma Bird. "Your EU Work Rights."
European Union (EU). 10 December 2008. "Free Movement and Residence Rights of EU Citizens and their Families: The Commission Assesses Application by Member States."
_____. 4 April 2008. "The Schengen Area and Cooperation."
_____. 2008. Commission of the European Communities. Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/38/EC on the Right of Citizens of the Union and their Family Members to Move and Reside Within the Territory of the Member States.
_____. 8 December 2007. "Council Decision of 6 December 2007 on the Full Application of the Provisions of the Schengen Acquis in the Czech Republic, the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic." Official Journal of the European Union (L323/34).
_____. 2005. European Commission. "Living, Working, Studying in Another EU Country – An Overview of Your EU Rights."
_____. 30 April 2004. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. Official Journal of the European Union (L158/77).
_____. N.d.a. "Czech Republic."
_____. N.d.b. "Travelling in Europe – Documents You Will Need."
_____. N.d.c. SOLVIT. "About SOLVIT."
_____. N.d.d. European Commission. "Unemployment Benefits (European Union)."
International Organization for Migration (IOM). 2008. "Managing Labour Mobility in the Evolving Global Economy." World Migration 2008.
Lecturer, University of Liverpool. 17 December 2008. Correspondence.
Migration News [California]. July 2008. Vol. 14, No. 3. "EU: Unauthorized, Irish 'No,' Blue Card."
United States (US). 11 June 2008. Overseas Security Advisory Council (OSAC). Czech Republic 2008 Crime and Safety Report.
University of Liverpool. N.d. "Samantha Currie – Liverpool Law School."
Additional Sources Consulted
Oral sources: Attempts to contact an official at the European Union Agency for Fundamental Rights were unsuccessful.
Internet sites, including: Amnesty International (AI), British Broadcasting Corporation (BBC), Centre for European Policy Studies (CEPS), Council of Europe, European Country of Origin Information Network (ecoi.net), European Union Agency for Fundamental Rights, Fédération internationale des ligues des droits de l'homme (FIDH), Freedom House, Human Rights Watch (HRW), Migration Information Source, Tolerance and Non-Discrimination Information System (TANDIS), United States (US) Department of State, U.S. Committee for Refugees and Immigrants (USCRI).
Canada. 2008. Canadian Mission to the European Union, Brussels. Correspondence received from an official, 1 p.