COMMISSION DECISION
of 11 August 2011
authorising Spain to temporarily suspend the application of Articles 1 to 6 of Regulation (EU) No
492/2011 of the European Parliament and of the Council on freedom of movement for workers
within the Union with regard to Romanian workers
(2011/503/EU)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European
Union,
Having regard to the Act of Accession of Bulgaria and
Romania (1), and in particular Article 23 paragraph 7 second
subparagraph of Annex VII, Part 1 ‘Freedom of movement for
persons’, thereof,
Having regard to the request from Spain of 28 July 2011,
Whereas:
(1) Spain has been fully applying Articles 1 to 6 of Regulation
(EEC) No 1612/68 of the Council of 15 October
1968 on freedom of movement for workers within the
Community (2) to Romanian nationals since 1 January
2009. Regulation (EEC) No 1612/68 was codified and
replaced by Regulation (EU) No 492/2011 of the
European Parliament and of the Council of 5 April
2011 on freedom of movement for workers within the
Union (3) , which entered into force on 16 June 2011.
(2) With reference to a serious disturbance of the Spanish
labour market, Spain notified the Commission on 22 July
2011, pursuant to paragraph 7 third subparagraph of
Annex VII Part 1 of the 2005 Act of Accession, that it
had decided on that day to re-introduce restrictions on
labour market access for Romanian workers, notably
because of the need to take immediate action in view
of the seasonal situation in the agricultural sector in the
summer; otherwise the danger of an increase in the
number of arrivals of Romanian workers while
awaiting a Commission Decision, pursuant to
paragraph 7 second subparagraph of that Annex VII,
would endanger the very effectiveness of the reintroduced
restrictions. At the same time, the Spanish
government submitted a reasoned ex-post notification
with supporting information as to the labour market
disturbance.
(3) By letter of 28 July 2011, pursuant to paragraph 7
second subparagraph of Annex VII to the 2005 Act of
Accession, Spain followed up the notification of 22 July
2011, requesting the Commission to state that Articles 1
to 6 of Regulation (EU) No 492/2011 be wholly
suspended in respect of Romanian workers throughout
Spain and in all sectors of the labour market and that the
Decision to be taken should be reviewed by
31 December 2012.
(4) Spain justifies its request by reference to the current
serious disturbance in the labour market in Spain, in
particular the unprecedented fall in the level of
employment following the economic recession that
started in 2008 which has resulted in a large increase
in the level of unemployment with the unemployment
rate currently exceeding 20 % and the difficulty to recreate
a substantial number of jobs in the short-term.
(5) Spain states that the disturbance in the Spanish labour
market, which seriously threatens the level of
employment, is of a general nature and not limited to
a particular region or sector.
(6) Spain also justifies its request with the following
elements: the decrease in the employment rate of
Romanian nationals in Spain; the steady rise of unemployment
and the high increase in the number of
Romanian nationals resident in Spain which occurred
despite the adverse evolution of the labour market in
Spain and which had an impact on the capacity of
Spain to absorb new inflows of workers.
(7) Paragraph 7 of Annex VII Part 1 of the 2005 Act of
Accession constitutes a safeguard clause, the purpose of
which is to allow a Member State that already fully
applies Articles 1 to 6 of Regulation (EU) No
492/2011 to workers, who are concerned by the transitional
arrangements of that Annex, and that undergoes
or foresees a serious labour market disturbance to reimpose
restrictions on the free movement of workers
in order to restore to normal the disturbed labour
market situation in a given region or occupation.
(8) Paragraph 7 of Annex VII Part 1 of the 2005 Act of
Accession provides for two connected procedures:
the normal procedure under paragraph 7 second
subparagraph and the urgent procedure under
paragraph 7 third subparagraph. While the procedure
ENL 207/22 Official Journal of the European Union 12.8.2011
(1) OJ L 157, 21.6.2005, p. 203.
(2) OJ L 257, 19.10.1968, p. 2. English Special Edition Series I Chapter
1968(II) p. 475.
(3) OJ L 141, 27.5.2011, p. 1.
in paragraph 7 second subparagraph requires a Member
State to request the Commission to state within 2 weeks
the whole or partial suspension of Union law on free
access to the labour market in a given region or occupation,
the procedure in paragraph 7 third subparagraph
provides that, in urgent and exceptional cases where the
Member State cannot await the outcome of a
Commission Decision under paragraph 7 second
subparagraph, it can already unilaterally suspend EU
law on free movement of workers.
(9) The analysis of the available economic data shows that
Spain is indeed facing a serious labour market
disturbance, characterised by the by far highest unemployment
rate in the EU (Eurostat monthly unemployment
data show 21,0 %, against 9,4 % on average
in the EU and 9,9 % in the Euro area in June 2011), a
particularly dramatic unemployment among youth
(45,7 % in June 2011) and a slow economic recovery
(Eurostat figures show GDP growth first quarter 2011
compared with the previous quarter was only 0,3 %,
against 0,8 % for the EU and the Euro area), hampered
in addition by the current international financial
turbulence requiring Spain to introduce further budget
cuts aiming at fiscal consolidation, which could have
further short-term negative effects on its scope for
economic growth. The impact of the employment
decline has been a general one affecting all regions and
all sectors of production. Labour force survey data for the
period between 2008 and 2010 also shows a general fall
in the employment level of 9 %, in the construction
sector even of 33 %, affecting all regions, varying
between 6 % in the Basque country to 13 % in the
Valenciana Autonomous Community.
(10) Consequently the Commission considers that Spain has
provided evidence that it is undergoing a labour market
disturbance in a generalised way which seriously affects
the level of employment in all regions and all sectors and
is liable to persist in the near future.
(11) Moreover, the analysis by the Commission has established
that: Romanian nationals living in Spain are
strongly affected by unemployment at a rate of more
than 30 % (source: Eurostat Labour force survey data,
first quarter 2011). The inflows of Romanian nationals
arriving in Spain, despite a certain decrease due to the
economic recession, remain at substantial levels, even
though there is a low labour demand in Spain. The
number of Romanian nationals usually resident in
Spain has increased from 388 000 on 1 January 2006
to 823 000 on 1 January 2010 (source: Eurostat
migration statistics).
(12) It is likely that a continuing unrestricted inflow of
Romanian workers would be a factor in increasing
pressure on the Spanish labour market.
(13) Therefore, in order to restore to normal the situation of
the Spanish labour market, it is appropriate to authorise
Spain to limit temporarily the free access of Romanian
workers to that labour market.
(14) Restrictions on access to the labour market constitute a
derogation from a fundamental principle of the Treaty on
the Functioning of the European Union, namely the free
movement of workers. In accordance with the well-established
case-law of the Court of Justice, such measures
should be restrictively interpreted and applied.
(15) Therefore, although with a view to the specific current
situation in the Spanish labour market and considering
displacement and other potential spill-over effects
between regions and sectors caused by a selective
restriction, it is at this time appropriate that restrictions
should apply for employed activities in the entire
territory of Spain and to all sectors, the scope of the
derogation can be reduced, should the Commission
ascertain that the relevant particulars which led to its
acceptance have changed or that its effects prove to be
more restrictive than its purpose requires, in particular
for employed activities requiring university degree and
equivalent qualifications.
(16) Equally, though in order for the restrictions authorised by
this Decision to have the envisaged effect on the Spanish
labour market, it is now considered appropriate that
these restrictions remain in place until 31 December
2012. This timeframe may be shortened if the
Commission determines that the relevant particulars
which led to the adoption of this Decision have
changed or that its effects prove to be more restrictive
than its purpose requires.
(17) To this effect, Spain will be required to provide quarterly
to the Commission such statistical data, as will be
required to ascertain the evolution of the labour market
per sector of activity and occupation. The first quarterly
report is to be presented before 31 December 2011.
(18) The Decision to authorise Spain to re-introduce
restrictions on the free access of Romanian nationals to
the Spanish labour market is further made under certain
conditions to ensure that these restrictions are strictly
limited to what is necessary to meet the envisaged
purpose.
(19) It is therefore not appropriate to authorise the re-introduction
of restrictions in respect of Romanian nationals
and their family members who are already employed in
the Spanish labour market and in respect of those
Romanian nationals and their family members already
registered as jobseekers by the Public Employment
Services in Spain.
EN12.8.2011 Official Journal of the European Union L 207/23
(20) The principles governing restrictions on access to the
labour market, as laid down in Annex VII Part 1 of
the 2005 Act of Accession, such as the standstill clause
and the principle of Union preference in paragraph 14,
should also be respected.
(21) The right of family members of Romanian workers to
take up employment in Spain should be governed mutatis
mutandis by paragraph 8 of Annex VII Part 1 of the 2005
Act of Accession.
(22) The restrictions on the rights of Romanian nationals and
their family members to access the Spanish labour
market authorised by this Decision are strictly limited
to the scope of this Decision and can in no way affect
any other rights that Romanian nationals and their family
members enjoy under Union law.
(23) A quarterly monitoring and information process on the
development of the Spanish labour market has to be
ensured.
(24) For monitoring purposes, an obligation to provide the
Commission with details of the measures that Spain has
taken on the basis of this Decision has to be ensured,
HAS ADOPTED THIS DECISION:
Article 1
Spain is hereby authorised under the conditions specified in
Articles 2 to 4 of this Decision to suspend Articles 1 to 6 of
Regulation (EU) No 492/2011 with regard to Romanian
nationals until 31 December 2012.
Article 2
This Decision shall not affect the Romanian nationals and their
family members:
1. who are employed in Spain on the day of entry into force of
this Decision;
2. who are registered as jobseekers by the Public Employment
Services in Spain on the day of entry into force of this
Decision.
Article 3
The application of this Decision shall be subject mutatis mutandis
to the conditions on transitional arrangements as laid down in
Annex VII Part 1 of the 2005 Act of Accession.
Article 4
Spain shall take all necessary measures to continue to monitor
closely the development of the labour market. It shall provide to
the Commission quarterly statistical data evidencing the
evolution of the labour market per sector of activity and occupation.
The first quarterly report is to be presented before
31 December 2011.
Spain shall provide the Commission and the Member States
without delay in case of any significant change with an
update of the relevant particulars it has supplied in respect of
its request for a Commission decision and in respect of which
this Decision is taken.
Article 5
This Decision may be amended or repealed in particular if the
relevant particulars referred to in Article 4 and which led to its
adoption have changed or that its effects prove to be more
restrictive than its purpose requires.
Article 6
Spain shall provide the Commission with details of the
measures it has taken on the basis of this Decision within 2
months of receipt thereof.
Article 7
This Decision shall enter into force on the day of its publication
in the Official Journal of the European Union.
Done at Brussels, 11 August 2011.
For the Commission
The President
José Manuel BARROSO
ENL 207/24 Official Journal of the European Union 12.8.2011