Free movement of Person (worker's rights) Flashcards
What is a worker and what case provides such definition?
Provide the facts of the case
The Treaty has not defined the term but the case of Lawrie-Blum provided essential features of an employment relationship “for a period of time a person performs service for and under the direction of another for which he receives remuneration”
- A trainee teacher who was a British national was denied admission for a teacher training in Germany
- On the grounds of nationality
- The German government concluded that as a trainee Lawrie-Blum did not fall within the definition of a ‘worker’
- HELD: The refusal on grounds of nationality was discrimination. The refusal prevented her from accessing the market and accessing employment
What did the case of Levin expand on the definition of a worker in Lawrie-Blum?
The ‘worker’ must be engaged in an effective and genuine activity”
That part-time jobs was sufficient as long as the criteria set out in Lawrie-Blume were met
1. Perform a service
2. For and undue the direction of another
3. In return for remuneration
What did the case of Steymann provide on the concept of remuneration?
The defendant provided services in which he was not paid for BUT he received free accommodation, small pocket money and free food.
This case established that remuneration was not limited to money.
What did the court say in Betttray on performing compulsory job as a ‘worker’?
The court ruled that a person working as part of a compulsory drug rehabilitation programme was not a worker because the work was ancillary to his rehabilitation.
What did the courts say in the case of Antonissen regarding job-seekers?
Mention Article 45
Workers are allowed to remain in the host Member State to look for work. They must be allowed a reasonable time in which to accept offers of employment.
‘if after the expiry of the period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chance, of being engaged, he cannot be required to leave the territory of the Member State’
Article 45 ‘Reeves to offers of employment actually made, applying only to those who have already secured work’
What did Article 14(4) Directive 2004/38 say about job-seekers?
‘…the Union citizens and their family may not be expelled for as long as the union citizen can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’
What does article 7 state? (Right of residence for more than 3 months)
All union citizen shall have the right of residence for more than three months if they are…
- Economically active
- Enrolled in education (must show they have comprehensive sickness insurance)
- Have sufficient resources for themselves and their family
- Find him/herself in involuntary unemployment
What did the court say about giving job-seekers a reasonable time to find employment?
This depends on the circumstances of the job-seekers.
e.g. they may not possess certain qualifications that would be appealing to employers.
What does articles, 4,5,6 and 14 say on rights of a worker?
Article 4: Entry
Article 5: Exit
Article 6: right to residence for up to 3 months
Article 14: All of these rights are safeguarded under article 14 ‘as long as they do not became an unreasonable burden on the social assistance system of the host Member State”
What does Article 45 say on discrimination on grounds of nationality?
“Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member State as regards to employment, remuneration and other conditions of work and employment’
What are the is direct discrimination?
Provide cases (Com v Italy & Commission v France)
Can direct discrimination be justified?
Direct discrimination: This is on grounds of nationality
Com v Italy
- The court made clear that a national rule providing that private security work could only be carried out by Italian security firms employing only Italian nationals was contrary to EU law.
Commission v France
- The court held that a French rule requiring a ratio of 3 French seamen to one French seaman on a merchant ship contravenes EU law when applied to EU nationals
It cannot be justified unless there is a public service exemption
What is indirect discrimination? Provide cases (Salvatore and Groener)
Indirect discrimination arises when a rule relating to employment is neutral in terms of nationality but in practice, it effects non-nationals workers more severely.
Salvator
- An Italian who perfumed military service in Italian army was working in Germany
- His employer conferred seniority to persons for having served in the German army
- Salvator argued that non-German were unlikely to serve in that army and that he was therefore subjected to indirect discrimination
- The ECJ agreed and held there was no objective justification for the seniority rule
Groener
- A teacher from Netherlands, was refused appointment in Ireland as a permanent art teacher
- Because she failed an Irish language test
- There was a language requirement - this did not amount to breach EU law
What does article 7(2) say on social and tax advantages?
What definition was given in Even [1979]?
‘A worker who is a national of an Member State shall enjoy the same social and tax advantages as national workers’
Even
‘social advantages are those which, whether or not linked to a contract of employment, are generally granted to workers primarily because of their objective status as worker or by virtue of the mere fact of their residence on the national territory’
Social and tax advantages continued : What did the case of Cristini provide?
- She was an Italian national but lived in France
- Her husband was working for the French rail way company and he died
- She became a widow with 3 kids
- Normally, if you are a French national you can get a free real way card
- She applied but was denied
- HELD: ‘All social or tax advantages whether attached to a contract of employment are to be given to non-nationals’
What does Article 7(3) say on education for workers?
What did Brown say about Vocational schools?
Mention case of Iair [1988]
It confers the same right and under the same conditions as national workers, have access to training in vocational schools and retaining centres’
Brown [1988]
‘an establishment which provides only instructions interposed between period of employment or else close to connect with employment, particularly during apprenticeship’
Iair [1988]
- Refused maintenance grant on the grounds that she hasn’t been in regulate occupational activity in Germany for a period of 5 years prior to commencing the course
- Discrimination found in violation of EU law
