free movement of people - workers and TCNs

article 45

Article 45 of the TFEU states that the freedom of movement for workers shall be secured within the EU

treaty prohibitions on

• Direct discrimination (distinctly applicable measures) 

• Indirect discrimination (indistinctly applicable measures 

  • E.g. requirements on residence, language, qualifications (double burden) 

Indirect discrimination - C-237/94 O’Flynn 

• Grant of a payment to cover funeral expenses incurred by a migrant worker subject to the condition that burial or cremation take place within the territory of that Member State. 

• Held to be indirectly discriminatory: 

  • “Unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage”. 

who is a worker

Art. 45(1): 

•  ‘freedom of movement for workers shall be ensured within the Union’ 

  CJEU:  

  • Broad Union meaning of the term ‘worker’ – Hoekstra.  

  • Criteria established in C-66/85 Lawrie Blum: 

  •  ‘for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration ’  

factors irrelevant to meeting the criteria of a worker

• Sphere of employment (36/74 Walrave)  

• Nature of legal relationship between employer/employee (152/73 Sotgiu)  

• Living in one state and working in another (C-379/11 Caves Krier Frères) 

concept of a worker

C-196/87 Steymann  

• Plumber working for religious community, doing odd jobs, community looked after his material needs, paid him pocket money.  

• This was sufficient to count as remuneration, and the activities he carried out were valuable to the community, so were effective and genuine.  

C-344/87 Bettray

• Drug rehabilitation programme, person recovering from addiction was paid to carry out work.  

• Not effective and genuine economic activity – tailored to an individual who couldn’t take up work under ‘normal’ conditions, intended to re-integrate them into employment market.  

work seekers

those seeking work can also fall within the personal scope of EU law.  

Art. 14(4)(b) CRD (Capital Requirements Directive) – EU citizens (and family members) who are seeking work cannot be expelled from an MS, as long as they can ‘provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’.  

No time period specified in CRD, however pre-CRD case law found that automatic expulsion after 3 months was incompatible with EU law but that a 6-month limit was compatible with EU law

Member States can justify indirect discrimination (eg residence requirements) against work seekers who are applying for social advantages such as jobseeker allowance.  

structure of employments rights - article 45

• The abolition of discrimination on grounds of nationality regarding  

  • employment,  

  • remuneration,  

  • other conditions of work and employment   

• Including:  

  • the right to accept employment offers,  

  • move to take up that work,  

  • stay in a MS for that work,  

  • remain in the MS after that work has ended  

• Workers and their families also draw rights from the CRD (Directive 2004/38) and FMWR (492/11) 

access to employment

• Direct discrimination  

• Indirect discrimination  

• Non-discriminatory measure 

direct discrimination

Art. 1 Free Movement of Workers Rights  

• ‘Right to take up an activity as an employed person, and to pursue such activity’  

article 4

• national provisions that restrict the employment of foreign nationals in any undertaking do not apply to EU citizens.  

• if national law requires certain percentage of national workers, EU citizens count as national workers. 

indirect discrimination

Art. 3(1)(b) FMWR –  

• national measures unlawful where ‘though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from employment offered’.  

language requirements

• Art. 3(1) WR – principle of equal treatment does not apply regarding ‘conditions relating to linguistic knowledge required by reason of the nature of the post to be filled’. 

• C-379/87 Groener  

  • A Dutch woman refused a permanent post at a design college in Ireland because she didn’t speak Irish  

  • Justification attempted because it formed part of government policy to promote the use of the Irish language as a means of cultural expression and identity.  

  • CJEU accepted justification – education important for implementing such a policy, the requirement for teachers to speak adequate Irish compatible with Art 3(1), as long as the level of knowledge required is not disproportionate  

  • But could not require that linguistic knowledge acquired in Ireland 

non-discriminatory measures

C-415/93 Bosman  

• ean-Marc Bosman, a Belgian footballer, wanted to transfer to a French club after his contract ended.

• His Belgian club demanded a transfer fee, even though he was out of contract.

• The fee was not paid, and the transfer failed — Bosman challenged the rule.

• Football transfer fee rules were non-discriminatory but ‘directly affect players’ access to the employment market in other Member States’, and were an unjustified ‘obstacle to the freedom of movement of workers’.  

• The Court decided that rules requiring a transfer fee for out-of-contract players moving between clubs in different EU Member States were incompatible with EU law. 

• Despite being non-discriminatory in form, it had a disproportionate effect on workers wanting to move across borders.

• The rule restricted the ability of players (especially those out of contract) to freely access employment in other Member States.

• The Court said it directly affected access to the labour market, which is protected under Article 45.

Equality regarding terms and conditions of employment: 

• Art. 7(1) FMWR – migrant worker must not be treated ‘differently from national workers in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should be become unemployed, reinstatement or reemployment’.  

C-350/96 Clean Car

• Austrian rule requiring business managers to be resident in Austria before they could work in Vienna.  

equality regarding tax advantages  

• Struggle for the court to reconcile free movement jurisprudence and extremely sensitive area of national competence.  

• Tax is difficult – international law generally requires that residents and non residents be treated differently, but under EU law discrimination on residence grounds is unlawful. CJEU says that residents and non-residents tax situation is not comparable, so equal treatment doesn’t apply.

• But if on the facts the circumstances of resident and non-resident taxpayers can be considered comparable, it would be discriminatory to treat them differently.  

Exercise of employment – family members

Even refers to ‘residence on the national territory’ – Art 7(2) applies to benefits granted by host state not just to its workers but to its residents. Means that migrant workers and their families can enjoy social advantages offered by home state.  

rights of work seekers C-138/02 Collins  

An Irish jobseeker in the UK was denied jobseeker’s allowance for not being "habitually resident." The CJEU initially confirmed that, under Article 45 TFEU and workers' rights, jobseekers are only entitled to equal treatment regarding access to employment. However, the Court then expanded this by noting that, due to EU citizenship, financial benefits that help access the labour market (like jobseeker’s allowance) can fall under Article 45.

This approach seems to conflict with Article 24(2) of the Citizenship Directive, which allows Member States to deny social assistance to jobseekers within their first three months of residence (or longer under certain conditions). However, the Collins judgment clarified that Member States can require a genuine link (e.g. a residence requirement) between the applicant and the host state to justify indirect discrimination when granting such benefits. 

derogations and justifications

• A derogation lets a Member State deviate temporarily or partially from an EU rule without breaching EU law — but only if justified and legally permitted.

general derogations

• General derogations (public policy, public security, public health)  

• Refuse a person entry or expel, justifying discriminatory measures or conduct which restricts access to the market or exercise of the freedom. 

• Article 45.3 TFEU: 

  • “It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health” 

specific derogations (public service)

• The initial refusal of access to a public service job 

• Article 45.4 TFEU: 

  • “The provisions of this Article shall not apply to employment in the public service” 

personal conduct and restricting free movement- Bonsignore

• Negligent shooting when handling a pistol without a licence 

• A deportation order: reasons of a general preventive order (resurgence of violence among immigrant communities), Bonsignore as a deterrence  

• Deportation can be ordered but only as regards breaches of public security by the individual. 

van duyn - personal condcut

A Dutch went to the UK to work as a secretary for the Church of Scientology. The church not prohibited, but its activities ‘socially harmful’ 

judgment:

• A Member State may restrict an EU worker’s right to move and work freely if that person is currently associated with an organization deemed socially harmful, based on public policy grounds, even if the organization isn’t illegal — but such restrictions must be justified, proportionate, and subject to EU oversight.

calfa

Ms. Calfa, an Italian national, was convicted in Greece for drug possession for personal use and was automatically expelled for life under Greek law.

courts findings:

• public policy may justify restricting EU rights only if there is a genuine and serious threat to fundamental interests of society

• Drug use may be seen as a societal danger, but any measure taken must still:

  • Be based on the individual’s personal conduct,

  • Show a present threat — not just a past conviction

• A blanket rule that automatically expels foreign nationals without assessing personal conduct or threat is not allowed.

• In Calfa’s case, expulsion followed automatically from a conviction, with no assessment of whether she posed a real ongoing threat.

The automatic lifetime expulsion of an EU national after a drug conviction violated EU law, as it failed to meet the strict conditions for applying the public policy exception under Directive 64/221.

public interest justifications

• court developed justifications - must past the proportionality test

• National interests worthy of protection should take precedence over the free movement provisions  

• National restrictive measures justified by: 

  • imperative requirements in the general interest  

  • suitable for securing the attainment of the objective which they pursue; and  

  • not going beyond what is necessary in order to attain it  

    • Examples of justifications: see Barnard p. 504 et seq.  

    • Generally, public-order justifications regarded more leniently than economic objectives, especially when they have a protectionist aim 

third country nationals (TCNs) legislation

overview of the legislation:

• Family Reunification Directive 2003/86  *

• Long-Term Residence Directive 2003/109  *

• Students and Volunteers Directive 2016/801  *

• The Blue Card Directive 2009/50  

• Seasonal Workers Directive 2014/36  

• Intra-Corporate Transfer Directive 2014/66 

Family reunification directive 2003/86 

• One of the main sources of immigration to the EU  

• Aim: integration to the host state and fair treatment  

• A TCN with a residence permit for a year or more, with reasonable prospects of permanent residence, can apply for family reunification. 

• States  

  • Obligation to admit: spouse and minor children  

  • Discretion to admit: dependent ascendants, descendants and an unmarried partner  

• Conditions:  

  • Accommodation  

  • Sickness insurance  

  • Stable and regular resources (Chakroun: it does not matter that the sponsor entitled to social benefits based on his income)  

  • States can require TCN family members to comply with integration measures (e.g., language courses). K: consider individual circumstance, reasonable fees 

• Family members access to:  

  • Employment and self-employment  

  • Education and vocational training  

• NO access to:  

  • Social security or social assistance  

  • After 5 years: spouse and adult children – right to an autonomous residence permit (independent of the sponsor) 

long term residence directive 2003/109

• For those who resided legally and continuously for 5 years in the MS  

• A long-term residence permit (at least 5 years, automatically renewable) if:  

  • Adequate resources  

  • Sickness insurance  

    • MS can require complying with integration conditions (e.g., a civic integration exam 

• Rights of long-term residents:  

  • Equal treatment with nationals (access to employment, education and training, recognition of diplomas, social protection and social assistance, access to goods and services)  

  • Family reunion (under Directive 2003/86)  

  • Secondary mobility (reside in another MS for more than 3 months if resources and sickness insurance)  

  • Expulsion only based on personal conduct (an actual and sufficiently serious threat to public policy or public security), not on lack of resources 

Students and Volunteers Directive 2016/801  

• Mutual enrichment  

• Entry and residence of TCNs for research, studies, training, voluntary service, pupil exchange, educational projects, au pairing  

• Conditions:  

  • Valid travel doc  

  • Parental authorization if a child  

  • Sufficient resources and return travel costs  

  • Health insurance  

  • Hosting agreement (researchers) or acceptance by a higher education institution 

• Rights:  

  • Equal treatment (limitations: student grants and loans)  

  • Students can work  

  • After finishing research or studies, stay at least 9 months to look for work 

  • Family reunification under Directive 2003/86  

  • Secondary mobility