Acting to stop harm: the FCA and Appointed Representatives
February 2013 has been an active month for press coverage around the UK Government’s fears that Bulgarian and Romanian nationals will flock to the UK in 2014 when transitional restrictions on work are finally lifted. The second week of February was particularly lively with the Prime Minister making a statement every day about various measures the Government is taking to end migration. In the midst of the noise and fury, it is easy to lose track of the facts. Perhaps we should remind ourselves about some of them now.
Bulgaria and Romania joined the EU in 2007. The accession agreement with the two countries was ratified in 2005 by all EU Member States, including the UK, and accession took place on 1 January 2007. The agreement includes the possibility for Member States to limit nationals of Bulgaria and Romania from working in their state but at the end of seven years from accession, this limitation must be lifted. In the meantime, Bulgarians and Romanians have had the right of free movement for self-employment, studies, holidays etc in the UK and all other Member States since accession. So any Romanian or Bulgarian who really wants to come to live in the UK only needs to set up in business and he or she is entitled to do so. However, Romanians and Bulgarians will not have the right to move to the UK to take a job until 1 January 2014. This is what was agreed in the Accession Agreement in 2005 and mirrors the arrangements agreed for the Poles (and all other EU 8 nationals) and for the Croatians who become EU citizens on 1 July 2013.
The question which appears to be occupying the Government, or at least part of it, is what can be done to prevent or restrict the right of Bulgarians and Romanians from working in the UK after 1 January 2014. The legal answer is fairly straight forward: convince the 26 other Member States (including Bulgaria and Romania) to amend the accession agreement and remove the right of Bulgarian and Romanian nationals to work in other Member States. This may be difficult as only Malta and the UK are applying the transitional restrictions fully. All other Member States have either completely abandoned them (20 Member States) or partially done so (another 5 Member States). So only two Member States, Malta and the UK, might actually be in favour of such an amendment to the accession agreement. All the others have come to terms with free movement for work for Bulgarian and Romanian nationals and already applied the right (apparently without excessive disruption to their labour markets). The only other legal option would be to get into a time machine, go back to 2005 and refuse to ratify the accession agreement.
If the UK cannot actually stop Bulgarians and Romanians from taking jobs in the UK after 1 January 2014, can they take other measures? The answer is also quite straight forward, as Bulgarian and Romanian nationals will have full rights as workers, they will be entitled to full equality with British workers in all aspects of assistance to find work and once in a job to equal working conditions, wages, access to social benefits etc. EU law does not permit discrimination among EU workers on the basis of their EU nationality. Thus any efforts to exclude Bulgarian and Romanian workers from social benefits or the NHS available to British workers will be unlawful. If the UK government abolishes certain social benefits or free access to the NHS for British workers, then so Bulgarian and Romanian workers will no longer be entitled to those benefits either. But action cannot be taken against only some EU citizens and not others.
What are the possible consequences for the UK if it acts in defiance of EU law and continues to restrict Bulgarians and Romanians from working in the UK after 1 January 2014? The first thing that will happen is that the Government will create an enormous headache for employers, because in law Bulgarians and Romanians will be entitled to work. If an employer refuses them employment because of unlawful UK national restrictions, it will be liable in damages for the loss caused to the Bulgarian or Romanian who is refused employment. However, if the employer hires the Bulgarian or Romanian worker, it risks being fined by the UK authorities. This makes it a no-win situation for employers. The Bulgarian or Romanian authorities would be entitled to commence court proceedings in the Court of Justice against the UK for its failure to comply with the accession agreement. Similarly, the European Commission could start proceedings. All in all, the gain for the UK government is purely internal to the Tory Party and the difficulties it is having around the ‘Europe’ question. The loss for the UK, however, extends far beyond the Tory Party to the whole country and its employers.
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