Since the referendum several EU leaders have talked of the importance of protecting the principle of free movement of people. Theresa May acknowledged in her Lancaster House speech last month that view and concluded that, as a consequence, the UK could not stay in the single market. But both the prime minister and other EU leaders are taking a harder line than is required.

It is true that free movement as defined in the citizens’ rights directive of 2004 is fairly extensive. It includes rights to live, work or study in another member state and a right to remain in that state after five years continuous residence, if certain conditions are met. But the underlying treaties are much more nuanced.

For example, Article 45 of the Treaty on the Functioning of the EU promises free movement “for workers” and talks about the right “to accept offers of employment actually made”. It also says that the right to remain in a country after finishing employment there should be determined by regulations.  

Meanwhile, Article 46 says that the EU should set up “appropriate machinery” to “facilitate the achievement of a balance between supply and demand in the employment market” to avoid “serious threats to the standard of living and the level of employment in the various regions and industries”. In other words, the treaties provide a mechanism to deal with the precise concerns expressed in part of the EU (including the UK) that an influx of migrant workers in a particular industry or area has lowered wages or denied local people employment. 

Yet the EU has taken no steps to alter the 2004 directive in response to these concerns. Other changes to EU laws could close loopholes, such as the practice of directly recruiting people to fill low-wage jobs in one member state through employment agencies in other member states, thus excluding local residents from applying.

The difficulty is not that these things can’t be done, it is the lack of a political will to do so. It is understandable that member states which depend on commuting cross-border workers to maintain their economy should take this position (355,000 people a day go to work in Luxembourg from its neighbouring countries) or that countries which have only recently been independent should not want to put up barriers to cross border employment (Croatia and Slovenia were part of the same country from the 14th century until 1991).  

But those issues need not prevent permissive legislation that would enable member states to respond to the undoubted problems that free movement of people has brought in some places. Sadly, the referendum vote has hardened positions in the EU and may have prevented sensible reform which could have avoided a hard Brexit and helped governments in other member states to respond better to populist parties who threaten the EU’s very existence.

by Nick Kent | 09.02.2017

Edited by Hugo Dixon

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