EU Law - Free Movement of Persons and Workers

Flashcards for vocabulary review.

Free Movement of Persons

Initially based on rights for “workers” (EEC Treaty); since Treaty of Maastricht (EIF: 1 Nov 1993): Two strands: Free movement of workers (one of the four freedoms, TFEU art 45), AND Free movement of nationals of an EU MS based on EU Citizenship (EU Citizens) (see TFEU Art 21, see lecture on 11th February).

Right of Establishment

Free movement of workers also entails the “right of establishment” (TFEU, art 49), to set up in business (extends to companies)

Free movement guarantees also cover

Job-seekers (Antonissen); Family members of workers (see ‘EU Citizenship Directive 2004/38/EC; next lecture); Students (see ‘EU Citizenship Directive 2004/38/EC; next lecture)

Goal of Free Movement

Achieving internal market; Higher goal: ‘creating an ever closer union among the peoples of Europe’ and maintaining peace in Europe.

TFEU, Article 26

The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market and the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.

TEU, Article 3(2)

The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

TEU, Article 3(3)

The Union shall establish an internal market

TFEU, Article 45

Freedom of movement for workers shall be secured within the Union. It entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

Cross-border element

Required for Article 45 to apply.

Worker

A person who performs services of some economic value for and under the direction of another person in return for which he receives remuneration.

Lawrie-Blum v Land Baden-Württemberg

Established the ‘autonomous definition’ of worker as determined by EU law.

Worker - trainee

The fact that teachers' preparatory service, like apprenticeships in other occupations, may be regarded as practical preparation directly related to the actual pursuit of the occupation in point is not a bar to the application if the service is performed under the conditions of an activity as an employed person.

Part-time workers

The expressions 'worker' and 'activity as an employed person' must be understood as including persons who, because they are not employed full time, receive pay lower than that for full-time employment, provided that the activities performed are effective and genuine.

Levin v Staatssecretaris van Justitie

Concerns persons who pursue or wish to pursue an activity as an employed person on a part-time basis only.

Limits of the term ‘worker’

‘Genuine and effective economic activity’; Not covered: “activities on such a small scale as to be regarded as purely marginal and ancillary.”

Antonissen

Extended freedom of movement of workers to those seeking work.

Effet utile

Principle of utility; interpretation according to the purpose of a treaty.

Steymann v Staatssecretaris van Justitie

Work in religious community in exchange for bed, food and pocket money.

Bettray v Staatssecretaris van Justitie

Work as drug rehabilitation programme.

Kempf v Staatssecretaris van Justitie

Part-time music teacher, with earning supplemented by social security.

TFEU, art 45 extended to

Those seeking work (EU case law - Antonissen); Those no longer working through retirement or illness (EU Citizenship Directive); Families of workers (EU Citizenship Directive; EU Regulation No 492/2011); Access to social security benefits (EU Regulation No 492/2011).

Direct Effect

Some treaty provisions can have direct effect.

Van Gend en Loos

Leading case on direct effect.

Direct effect requires

Provision in question must be sufficiently clear, precise, and unconditional for reliance to be placed on it in the national courts

Primary EU Law

TFEU, in particular: Art 45

Secondary EU Law

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 and European Parliament and Council Directive 2004/38 (‘EU Citizenship Directive’).

TFEU art 45 - limits

Subject to limitations justified on grounds of public policy, public security or public health. The provisions of this Article shall not apply to employment in the public service.

Public service

Employment must be connected with the specific activities of the public service in so far as it is entrusted with the exercise of powers conferred by public law or with responsibility for safeguarding the general interests of the state.

Commission v Italy

Researchers at national research centre; “Only the duties of management or of advising the state on scientific and technical questions could be described as employment in the public service.”

Commission v Luxembourg

School teachers – accept need to protect national identity of small country, but disproportionate.

Public policy

Must be based on personal conduct of individual.

Van Duyn v Home Office

Must be based on personal conduct of individual – Scientologist.

Adoui & Cornuaille v Belgium

Law banning prostitutes from entering the country but no ban on prostitution in Belgium.

R v Bouchereau

Possession of drugs; recourse by a national authority to the concept of public policy presupposes a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.

Regulation 492/2011

No direct obstacles to foreign workers or laws with aim or effect of keeping away nationals from other EU MS when jobs are advertised/being created (see, e.g., Article 1 of the Regulation); No special recruitment procedure for foreign nationals (see Article 3(2)); No nationality quotas (see Article 4).

Regulation 492/2011 - Equality of Treatment

A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work and shall enjoy the same social and tax advantages as national workers.

Regulation 492/2011 - Families

The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Union royale belge des sociétés de football association ASBL v Bosman

Article 48 of the EEC Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.

Clean Car Autoservice GmbH v Landeshauptmann von Wien

The rule of equal treatment in the context of freedom of movement for workers, enshrined in Article 48 of the EC Treaty, may also be relied upon by an employer in order to employ workers who are nationals of another Member State.

Cristini v Société nationale des chemins de fer français

Legal entitlement to rail discount for large family, claimed after worker’s death; Interpretation of Art 7(2) Regulation (EEC) No 1612/68 (“Same social advantages”).

Indirect Discrimination

Rules or criteria that adversely affect non-nationals not allowed. Exception for “linguistic knowledge required by reason of the nature of the post to be filled” (Reg 492/2011 art 3(1)).

Groener v Minister for Education

Qualification in Irish needed to teach in further education; Acceptable in pursuit of language policy so long as applied in proportionate and non-discriminatory way.

Angonese v Cassa di Risparmio di Bolzano SpA

Unlawful to require evidence of linguistic knowledge exclusively by means of one particular diploma issued only in one particular province of a Member State.

EU Citizenship

Free movement of nationals of an EU MS based on EU Citizenship (EU Citizens)

Treaty of Maastricht

Introduced EU Citizenship

EU MSs

Addressee of the norm: the EU Member States (TFEU = treaty of public international law)

teleological interpretation

CJEU: teleological interpretation of EU law: some treaty provisions [and other sources of EU law] can have direct effect

Vienna Convention of the Law of Treaties

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose [= ‘spirit’; teleological interpretation].

Worker

Autonomous definition’ of worker, EU-law specific meaning.

Limits

‘Effet utile’ [French] (principle of utility) (=> interpretation according to the purpose of a treaty, see 1969 Vienna Convention on the Law of Treaties