ECJ: Bulgarian students’ access cannot be excessively restricted
By Eric van Puyvelde | Thursday 21 June 2012
During a transitional period of up to five years following Bulgaria’s accession to the EU in 2007, the conditions of access by Bulgarian students to the labour market of another member state may not be more restrictive than those applicable to students who are third-country nationals. This is the conclusion reached in a 21 June ruling (Case C-15/11) by the EU Court of Justice (ECJ) in answer to a question referred by an Austrian court.
The protocol concerning the conditions and arrangements for admission of Bulgaria to the EU provides that access of Bulgarian nationals to the labour markets of the member states is to be regulated, during the transitional period, by national measures, or measures resulting from bilateral agreements. Nonetheless, that protocol also enshrines the principle of preference for citizens of the EU over third-country workers. In 2008, an Austrian national applied for a work permit on behalf of a Bulgarian national, who was studying in Austria and who had already been resident there for over a year. The Landesgeschäftsstelle des Arbeitsmarktservice Wien (Regional Agency of the Department of Employment, Vienna, Austria) rejected that application on the ground that the maximum number of foreign workers for the region of Vienna had already been exceeded. The Verwaltungsgerichtshof (Administrative Court, Austria), hearing the case, asked the ECJ whether such legislation is compatible with EU law.
This regulation provides that a work permit can be issued only if the situation of the labour market permitted employing the foreign worker; and where the maximum numbers of foreign workers fixed by legislation had been exceeded, the issuing of a work permit should be subject to certain additional conditions; and that the examination of the situation of and developments in the labour market must be carried out systematically.
In its ruling, the ECJ emphasises that, according to the preference clause stipulated in the admission protocol, Bulgarian nationals must not merely enjoy the same conditions of access to the labour markets of the member states as third-country nationals, but must receive preferential treatment. The ECJ notes that, according to Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, after the first year of residence of a student who is a third-country national, the host member state may invoke the situation of its labour market only in exceptional circumstances and provided that any planned measures to that effect are justified and proportionate with regard to the aim being pursued.
The Austrian legislation requires a systematic examination of the labour market and states that the issuing of a work permit is allowed only if neither an Austrian national nor a foreign national available on the labour market is available for the vacant position to be filled by the foreign national. Therefore, that legislation requires that the situation of the labour market be taken into account without it being necessary to establish the existence of exceptional circumstances, which justify it being taken into account.