The free movement of workers is a fundamental freedom of citizens of the Union and one of the pillars of the internal market, enshrined in Article 45 of the Treaty on the Functioning of the European Union (TFEU). Its implementation is further developed by Union law aiming to guarantee the full exercise of rights conferred on citizens of the Union and the members of their families.
(2)
The free movement of workers is one of the key elements in the development of a more integrated Union labour market, including in cross-border regions, which allows higher worker mobility, thereby increasing diversity and contributing to Union-wide social inclusion and integration of persons excluded from the labour market. It also contributes to finding the right skills for vacant positions and overcoming bottlenecks in the labour market.
(3)
Regulation (EU) No 492/2011 of the European Parliament and of the Council (4) established mechanisms for clearance and for information exchange, and Commission Implementing Decision 2012/733/EU (5) laid down provisions on the functioning of a network for European employment services (EURES network) in accordance with that Regulation. That regulatory framework needs to be revised to reflect new mobility patterns, enhanced requirements for mobility on a fair basis, changes in the technology for sharing job-vacancy data, the use of a variety of recruitment channels by workers and employers and the increasing role of other labour-market brokers next to the public employment services (‘PES’) in the provision of recruitment services.
(4)
In order to help the workers who enjoy the right to work in another Member State to exercise that right effectively, assistance in accordance with this Regulation is open to all citizens of the Union who have a right to take up an activity as a worker and to the members of their families in accordance with Article 45 TFEU. Member States should give the same access to any third-country national benefiting, in accordance with Union or national law, from equal treatment with their own nationals in that field. This Regulation is without prejudice to the rules on the access of third-country nationals to national labour markets as set out in the relevant Union and national law.
(5)
Growing interdependency among labour markets calls for reinforced cooperation between employment services, including those in cross-border regions, to bring about freedom of movement for all workers through voluntary labour mobility within the Union on a fair basis and in accordance with Union law and national law and practice pursuant to point (a) of Article 46 TFEU. A framework for cooperation on labour mobility within the Union should therefore be established between the Commission and the Member States. That framework should bring together job vacancies from across the Union and the possibility of applying for those job vacancies, set up arrangements for the provision of related support services to workers and employers and provide for a common approach for the sharing of the information necessary to facilitate such cooperation.
(6)
The Court of Justice of the European Union (Court of Justice) has considered that the concept of ‘worker’ in Article 45 TFEU must be given a Union meaning and be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. In order to be treated as a worker, a person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. The essential feature of an employment relationship has been considered to be that, for a certain period of time, a person performs services for and under the direction of another person in return for which remuneration is received (6). The concept of ‘worker’ has been considered to include, in certain circumstances, persons undertaking an apprenticeship (7) or a traineeship (8).
(7)
The Court of Justice has consistently held that freedom of movement for workers forms one of the foundations of the Union and, consequently, that the provisions laying down that freedom must be given a broad interpretation (9). The Court of Justice has held that the freedom of movement of workers contained in Article 45 TFEU also entails certain rights for nationals of Member States moving within the Union for the purposes of seeking employment (10). The concept of ‘worker’ should therefore, for the purposes of this Regulation, be understood to cover jobseekers, regardless of whether they are currently in an employment relationship.
(8)
In order to facilitate labour mobility within the Union, the European Council requested in the Compact for Growth and Jobs that the possibility of extending the EURES network to apprenticeships and traineeships be explored. Apprenticeships and traineeships should be covered under this Regulation provided that successful applicants are subject to an employment relationship. Member States should be able to exclude from clearance certain categories of apprenticeships and traineeships in order to ensure the coherence and functioning of their educational systems and to take into account the need to design their active labour market policy measures on the basis of the needs of the workers targeted by those measures. The Council recommendation of 10 March 2014 on a quality framework for traineeships (11) should be taken into consideration for the purposes of improving the quality of traineeships, in particular as regards learning and training content and working conditions, with the aim of easing the transition from education, unemployment or inactivity to work. In accordance with that recommendation, the rights and working conditions of trainees under applicable Union and national law should be respected.
(9)
The information on offers of apprenticeship and traineeships provided for in this Regulation can be complemented by web-based tools and services developed by the Commission or by other actors, thereby allowing employers to share directly with workers opportunities on apprenticeships and traineeships across the Union.
(10)
Since its launch in 1994, EURES has been a network for cooperation between the Commission and the PES to provide information, advice and recruitment or placement for the benefit of workers and employers, as well as any citizen of the Union wishing to benefit from the principle of the free movement of workers, through its human network and via online service tools available on the European job mobility portal (EURES portal). A more coherent application of clearance, support services and exchange of information on labour mobility within the Union is needed. The EURES network should therefore be re-established and reorganised as a part of the revised regulatory framework in order to be further strengthened. The roles and responsibilities of the different organisations participating in the EURES network should be determined.
(11)
The composition of the EURES network should be flexible enough to adjust to changing developments on the market for recruitment services. The emergence of a variety of employment services points towards the need for a concerted effort by the Commission and the Member States to broaden the EURES network as the main Union tool for delivering recruitment services across the Union. A broader membership of the EURES network would have social, economic and financial benefits and could also contribute to generating innovative forms of learning and cooperation, including on quality standards for job vacancies and support services, at national, regional, local and cross-border level.
(12)
Broadening EURES membership would improve efficiency in service delivery by facilitating partnerships and enhancing complementarity and quality, and would increase the market share of the EURES network, in so far as new participants would make available job vacancies, job applications and curricula vitae (CVs) and offer support services to workers and employers.
(13)
It should be possible for any organisation, including public, private or third-sector employment services, which undertakes to fulfil all criteria and the full range of tasks set out in this Regulation to become a EURES Member.
(14)
Certain organisations would not be able to perform the full range of tasks required of EURES Members under this Regulation but have an important potential contribution to make to the EURES network. It is therefore appropriate to give them the opportunity to become EURES Partners on an exceptional basis. Such an exception should be granted only where justified and could be justified on the grounds of the applicant's small size, its limited financial resources, because it usually does not provide the whole range of tasks required or because it is a not-for-profit organisation.
(15)
Transnational and cross-border cooperation and support to all EURES Members and Partners operating in Member States would be facilitated by a structure at Union level (‘the European Coordination Office’). The European Coordination Office should provide common information, tools and guidance, training activities developed together with Member States, and a helpdesk function. The training activities and the helpdesk function should, in particular, assist staff operating in the organisations participating in the EURES network who are experts on providing job-matching, placement and recruitment activities, as well as information, guidance and assistance, to workers, employers and organisations interested in transnational and cross-border mobility issues and are in direct contact with those target groups for that purpose. The European Coordination Office should also be responsible for the operation and development of the EURES portal and a common IT platform. To guide its work, multiannual work programmes should be developed in consultation with Member States.
(16)
Member States should establish national coordination offices (NCOs) to ensure the transfer of available data to the EURES portal and to provide general support and assistance to all EURES Members and Partners on their territory, including on how to deal with complaints and problems with job vacancies, where appropriate in cooperation with other relevant public authorities such as labour inspectorates. Member States should support cooperation with their counterparts in the other Member States, including at cross-border level, and with the European Coordination Office. The NCOs should also have the task of verifying compliance issues as regards standards for the intrinsic and technical quality of data and data protection. To facilitate communication with the European Coordination Office and help the NCOs to promote compliance with those standards by all EURES Members and Partners on their territory, the NCOs should ensure a coordinated transfer of the data to the EURES portal through a single coordinated channel, where appropriate using existing national IT platforms. In order to deliver quality service in a timely manner, Member States should ensure that their NCOs have a sufficient number of trained staff and other resources necessary to carry out their tasks as laid down in this Regulation.
(17)
The social partners' participation in the EURES network contributes, in particular, to the analysis of obstacles to mobility as well as the promotion of voluntary labour mobility on a fair basis within the Union, including in cross-border regions. The social partners' representatives at Union level should therefore be able to attend the meetings of the Coordination Group established under this Regulation and should have a regular dialogue with the European Coordination Office, while national employers' organisations and trade unions should be involved in cooperation with the EURES network facilitated by the NCOs through a regular dialogue with the social partners in accordance with national law and practice. The social partners should be able to apply to become a EURES Member or Partner upon fulfilment of the relevant obligations under this Regulation.
(18)
Given their special status, the PES should be appointed by the Member States as EURES Members, without having to undergo the admission procedure. Member States should ensure that PES comply with the minimum common criteria set out in Annex I (the minimum common criteria) and the obligations under this Regulation. In addition, Member States are able to delegate to their PES general tasks or activities relating to the organisation of the work under this Regulation, including the development and operation of the national systems for admitting EURES Members and Partners. In order to fulfil their obligations under this Regulation, each PES should have sufficient capacity, technical assistance and financial and human resources.
(19)
In accordance with their competence regarding the organisation of labour markets, Member States should be responsible for admitting organisations as EURES Members and Partners on their territory. Such an admission should be subject to the minimum common criteria and a limited set of basic rules on the process of admission to ensure transparency and equal opportunities when joining the EURES network, while allowing for the flexibility necessary to take into account the different national models and forms of cooperation between PES and other actors on the labour-market in the Member States. Member States should be able to revoke such an admission in the event that an organisation ceases to fulfil the applicable criteria or requirements on the basis of which it was admitted.
(20)
The purpose of establishing the minimum common criteria to become a EURES Member or Partner is to ensure compliance with minimum quality standards. Applications for admission should therefore be assessed at least against the minimum common criteria.
(21)
One of the objectives of the EURES network is to support fair and voluntary labour mobility within the Union and therefore the minimum common criteria for admitting organisations to join the EURES network should also include the requirement that those organisations commit themselves to fully respecting applicable labour standards and legal requirements, including the principle of non-discrimination. Member States should therefore be able to refuse or revoke the admission of organisations that are in breach of the labour standards or legal requirements, in particular those concerning remuneration and working conditions. In the event of a refusal of admission or revocation based on non-compliance with those standards or requirements, the relevant NCO should inform the European Coordination Office, which should then forward the information to the other NCOs. The NCOs can take appropriate action in relation to organisations operating on their territory in accordance with their national law and practice.
(22)
The activities of organisations admitted to the EURES network should be monitored by Member States in order to ensure that the organisations apply the provisions of this Regulation correctly. Member States should take appropriate measures to ensure optimal compliance. Monitoring should primarily be based on the data provided by those organisations to the NCOs in accordance with this Regulation, but could also entail, where appropriate, control and audit measures, such as random checks. This should include the monitoring of compliance with the applicable accessibility requirements.
(23)
A Coordination Group should be established to exercise a coordinating role with regard to the activities and functioning of the EURES network. It should serve as a platform for the exchange of information and for the sharing of best practices, in particular regarding the development and dissemination across the EURES network of appropriate information and guidance to workers, including frontier workers, and employers. It should also be consulted during the process of preparing templates, technical standards and formats as well as regarding the definition of uniform detailed specifications for data collection and analysis. The social partners should be able to attend discussions of the Coordination Group concerning, in particular, strategic planning, development, implementation, monitoring and evaluation of the services and activities as referred to in this Regulation. In order to make synergies in the work of the EURES network with that of the PES Network established by Decision No 573/2014/EU of the European Parliament and of the Council (12), the Coordination Group should cooperate with the Board of the PES Network. Such cooperation could entail sharing best practices and keeping the Board informed about the current and planned activities of the EURES network.
(24)
The EURES service mark, as well as the logo characterising it, is registered as a European Union trade mark with the European Union Intellectual Property Office. Only the European Coordination Office has the authority to grant third parties permission to use the EURES logo in accordance with Council Regulation (EC) No 207/2009 (13). The European Coordination Office should inform the organisations concerned accordingly.
(25)
In order to communicate reliable and up-to-date information to workers and to employers on the different aspects of labour mobility and social protection within the Union, the EURES network should cooperate with: other bodies, services and Union networks facilitating mobility and informing citizens of the Union about their rights under Union law, such as the European network of equality bodies (Equinet), Your Europe portal, the European Youth portal and Solvit; organisations working for cross-border cooperation; and the organisations responsible for the recognition of professional qualifications and the bodies for the promotion, analysis, monitoring and support of equal treatment of workers designated in accordance with Directive 2014/54/EU of the European Parliament and of the Council (14). In order to ensure synergies, the EURES network should also cooperate with relevant bodies dealing with social security coordination.
(26)
The exercise of the right of freedom of movement for workers would be facilitated by setting up the means to support clearance in order to make the labour market fully accessible to both workers and employers. A common IT platform should therefore be further developed at Union level and run by the Commission. Securing that right means empowering workers to gain access to employment opportunities throughout the Union.
(27)
For digital use, job applications and CV data could be expressed as jobseeker profiles.
(28)
The common IT platform which brings together job vacancies and the possibility of applying for those vacancies, while enabling workers and employers to match data automatically according to various criteria and levels, should facilitate the achievement of equilibrium on the Union labour markets, thus contributing to increasing employment within the Union.
(29)
In order to promote freedom of movement for workers, all job vacancies made publicly available through PES and other EURES Members or, where relevant, EURES Partners, should be published on the EURES portal. However, in specific circumstances and with the objective of ensuring that the EURES portal contains only information relevant for mobility within the Union, Member States should be allowed to provide employers with the possibility not to have a job vacancy published on the EURES portal following an objective assessment by the employer of the requirements relating to the job in question, namely specific skills and competences required in order to adequately perform the job duties, on the basis of which the employer justifies not publishing the vacancy for those reasons alone.
(30)
Workers should be able, at any time, to withdraw their consent and require the deletion or modification of any or all of the data made available. Workers should be able to choose from a number of options to restrict access to their data or to certain attributes.
(31)
The legal responsibility for ensuring the intrinsic and technical quality of the information made available to the common IT platform, in particular as regards job vacancy data, is with the organisations that make the information available in accordance with the law of and within the standards set by the Member States. The European Coordination Office should facilitate cooperation, with a view to detecting any fraud or abuse relating to the exchange of information at Union level. All parties involved should ensure the provision of quality data.
(32)
To enable the staff of the EURES Members and Partners, such as case handlers, to carry out swift and adequate search and matching activities, it is important that there are no technical barriers in those organisations that prevent the use of the publicly available data from the EURES portal, so that such data can be processed as part of the recruitment and placement services offered.
(33)
The Commission is developing a European classification for skills/competences, qualifications and occupations (‘the European classification’). The European classification is standard terminology for occupations, skills, competences and qualifications which aims to facilitate online job application within the Union. It is appropriate to develop cooperation between the Commission and the Member States regarding interoperability and automated matching of job vacancies with job applications and CVs (‘automated matching’), including at cross-border level, through the common IT platform. Such cooperation should include mapping to and from the list of skills/competences and occupations of the European classification to national classification systems. Member States should be kept informed of the development of the European classification.
(34)
The data developed by Member States in the context of the European Qualification Framework (EQF) could serve as input for the European classification, as regards qualifications. Best practices and experiences gained under the EQF might contribute to a further development of the relationship between the data sets under the EQF and the European classification.
(35)
The establishment of an inventory to map national classifications to the list of skills/competences and occupations of the European classification or, alternatively, the replacement of the national classifications with the European classification might generate costs for Member States. Such costs would vary across the Member States. The Commission should provide technical and, where possible, financial support under the applicable rules for the relevant available financing instruments, such as the Regulation (EU) No 1296/2013 of the European Parliament and of the Council (15).
(36)
The EURES Members and, where relevant, the EURES Partners should ensure access to support services for all workers and employers that seek their assistance. A common approach should be established in relation to those services, and the principle of equal treatment of workers and employers seeking assistance with regard to labour mobility within the Union, regardless of their location in the Union, should be secured to the extent possible. Principles and rules should therefore be established with regard to the availability of support services on the territory of the individual Member States.
(37)
When providing services under this Regulation, comparable situations should not be treated differently and different situations should not be treated in the same way unless such treatment is objectively justified. There should be no discrimination based on grounds such as nationality, sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in the provision of such services.
(38)
A wider and more comprehensive choice of assistance on labour mobility opportunities within the Union benefits workers. Support services will help to decrease the obstacles faced by workers when exercising their rights under Union law and to exploit more efficiently all job opportunities, thus securing better individual employment prospects and pathways for workers, including those in vulnerable groups. All interested workers should therefore have access to general information on job opportunities and on the conditions of living and working in another Member State, as well as basic assistance with drafting CVs. Upon their reasonable request, interested workers should also be able to receive more personalised assistance, taking into account national practice. Further job-search assistance and other additional services could include services such as the selection of suitable vacancies, assistance with drawing up job applications and CVs and obtaining clarifications on specific job vacancies in other Member States.
(39)
Support services should also facilitate finding a suitable candidate in another Member State for those employers interested in recruiting from within the Union. All interested employers should be able to get information on specific rules and factors relating to recruitment from another Member State as well as basic assistance with drafting job vacancies. Where recruitment is considered to be likely, interested employers should also be able to receive more personalised assistance, taking into account national practice. Further assistance could include the preselection of candidates, facilitating direct contact between employers and candidates using specific online tools or events, such as job fairs, and administrative support during the recruitment process, especially for small and medium-sized enterprises (SMEs).
(40)
When providing workers and employers with basic information concerning the EURES portal and the EURES network, the EURES Members and, where relevant, the EURES Partners should put in place effective access to support services under this Regulation, not only by ensuring that such services are available on the explicit request of an individual worker or employer, but also, where appropriate, by providing, on their own initiative, information about EURES to workers and employers on the occasion of their first contact (‘mainstreaming EURES’), and by proactively offering assistance in this area throughout the recruitment process.
(41)
A profound understanding of labour demand in terms of occupations, sectors and needs of employers would benefit the right of free movement of workers within the Union. Support services should therefore include good-quality assistance to employers, in particular SMEs. Close working relationships between employment services and employers are intended to increase the pool of job vacancies, improve the job-matching of suitable candidates as well as improve labour-market intelligence in general.
(42)
Support services for workers are connected to the exercise of their fundamental freedom of movement as workers under Union law and should be free of charge. However, support services for employers may be subject to a fee, in accordance with national law and practice.
(43)
In order to allow organisations that apply for admission and aim to provide information and assistance through online channels to participate in the EURES network, it should be made possible for them to provide the support services referred to in this Regulation as e-services. Taking into account that digital literacy varies considerably across Member States, PES, at least, should also be able to provide support services through offline channels where necessary. Member States should take appropriate action in order to ensure the quality of online information and support provided by the EURES Members and Partners. They could entrust their NCO with the task of monitoring online information and support.
(44)
Particular attention should be paid to facilitating mobility in cross-border regions and to providing services to frontier workers who are subject to different national practices and legal systems and encounter specific administrative, legal or tax barriers relating to mobility. Member States may choose to set up specific support structures, such as cross-border partnerships, to facilitate that kind of mobility. Such structures should, within the framework of the EURES network, address the specific needs for information and guidance to frontier workers as well as placement and recruitment services and coordinated cooperation between the participating organisations.
(45)
It is important that the EURES Members and Partners are able to cooperate in providing services specific to frontier workers with organisations outside the EURES network without conferring rights or imposing obligations under this Regulation on such organisations.
(46)
Active labour market measures providing job-search assistance in each Member State should also be accessible to citizens of the Union who are searching for employment opportunities in other Member States. This Regulation should not affect the competences of individual Member States to set procedural rules and to apply general entry conditions to ensure an appropriate use of public resources available. This Regulation should not affect Regulation (EC) No 883/2004 of the European Parliament and of the Council (16) and should not constitute an obligation for Member States to export active labour market measures to the territory of another Member State if the citizen is already living there.
(47)
Transparency of labour markets and adequate matching capabilities, including the matching of skills and qualifications with the needs of the labour market, are important preconditions for labour mobility within the Union. A better balance between labour supply and demand by improved matching of skills and jobs can be achieved through an efficient system at Union level for exchanging information on national, regional and sectoral labour supply and demand. Such a system should be set up between the Commission and the Member States and used as a basis for Member States to underpin practical cooperation within the EURES network. That exchange of information should take into account labour mobility flows and patterns in the Union monitored by the Commission and the Member States.
(48)
A programming cycle should be established to support the coordination of action on mobility within the Union. The programming of Member States' national work programmes should take into account data on mobility flows and patterns, the data analysis of existing and forecast labour shortages and surpluses, and recruitment experiences and practices under the EURES network. The programming should consist of a review of the existing resources and tools at the disposal of the organisations in the Member State to facilitate labour mobility within the Union.
(49)
The sharing of draft national work programmes under the programming cycle among Member States should enable the NCOs, together with the European Coordination Office, to direct the resources of the EURES network towards appropriate actions and projects, and thereby to steer the development of the EURES network as a more result-oriented tool responsive to the needs of workers and employers according to the dynamics of labour markets. This could be supported by the sharing of best practices at Union level, including through reports on EURES activity.
(50)
In order to obtain adequate information for measuring the performance of the EURES network, this Regulation establishes the minimum data to be collected in Member States. In order to monitor the EURES network at Union level, comparable quantitative and qualitative data should be collected at national level by Member States. This Regulation therefore provides a procedural framework for establishing uniform detailed specifications for the collection and analysis of the data. Those specifications should help to evaluate the progress made against the objectives set for the EURES network under this Regulation and build on existing practice within PES. With regard to the fact that, in the absence of reporting obligations for workers and employers, it might be difficult to obtain direct recruitment and placement results, organisations participating in the EURES network should make use of other available information, such as the number of job vacancies handled and filled, where it can serve as a plausible indication for those results. Case handlers of those organisations should report regularly on their contacts and on the cases handled by them, in order to ensure a steady and reliable basis for the collection of data.
(51)
Where the measures provided for in this Regulation entail the processing of personal data, they must be carried out in accordance with Union law on the protection of personal data, in particular Directive 95/46/EC of the European Parliament and of the Council (17) and Regulation (EC) No 45/2001 of the European Parliament and of the Council (18), as well as the national implementing measures thereto. In that context, particular attention should be paid to issues concerning the retention of personal data.
(52)
The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 3 April 2014 (19).
(53)
This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, as referred to in Article 6 of the Treaty on European Union (TEU).
(54)
Since the objective of this Regulation, namely to establish a common framework for cooperation between Member States to bring together job vacancies and the possibility of applying for those job vacancies and to facilitate the achievement of a balance between supply and demand in the employment market, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary to achieve that objective.
(55)
In order to modify the areas of EURES activities for which the collection of data is required by the Member States or to add other areas of EURES activities undertaken at national level within the framework of this Regulation to those areas for which data collection is required to take into account evolving needs on the labour market, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultations with experts during its preparatory work, including Member States' experts. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
(56)
In order to ensure uniform conditions for the implementation of the technical standards and formats applicable to clearance and automated matching, the models and procedures for sharing information between Member States as well as the uniform detailed specifications for data collection and analysis, and in order to adopt the list of skills/competences and occupations of the European classification, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (20).
(57)
For the purpose of establishing the composition of the EURES network for a transitional period and of ensuring operational continuity with the EURES network as established within the framework of Regulation (EU) No 492/2011, organisations designated as EURES Partners or as Associated EURES Partners under Implementing Decision 2012/733/EU at the time of entry into force of this Regulation should be allowed to continue as EURES Members or Partners for a transitional period. Where such organisations wish to remain in the EURES network after expiry of the transitional period they should, once the applicable system for admittance of the EURES Members and Partners is established in accordance with this Regulation, make an application to that effect.
(58)
Regulations (EU) No 492/2011 and (EU) No 1296/2013 should therefore be amended accordingly,
