Free Movement of Persons Flashcards
Free movement of workers- Who is a worker?
Treaty Articles 45-49 of the TFEU are the provisions for the free movement of workers. Article 45 of the TFEU lays down the principles and Article 46 provides details of implementation. Case law has interpreted these provisions to mean that there shall be no discrimination as to nationality, that those in search of employment are to be entitled to do so, that those who have moved to another member State for the purpose of employment should be allowed to remain there when they fall ill or retire, and that they should be allowed to take their families with them and have the same social security benefits as a Member State’s nationals. These provisions are subject to exceptions, narrowly interpreted by the Court, in respect of the public policy, public security and public health Article 34 of the TFEU and in respect of employment in the public service Article 45 (4) of the TFEU.
The Court explained in the case 75/63 Hoekstra 1964 that Articles 48-51 of the Treaty (now Articles 45-49 of the TFEU) would be deprived of all effect if the meaning could be modified by national law. The Court went of to specify that a worker is not exclusively someone who is currently employed, but that it may also cover those persons likely to remain in the territory of a Member State after having been employed in that state. Advocate General Trabucci in the case 7/75 Mr and Mrs F v Belgium State 1975 considered that ‘the migrant worker is not to be viewed as a mere source of labour, but as a human being’.
Part-time work
If an individual is a worker, he or she has available the whole range of worker rights contained in the primary and secondary legislation. Whilst it is generally straightforward to establish worker status , there are a number of cases in which a claim to worker status has been challenged.
The concept of ‘workers’ covers those engaged in part-time work for less than the minimum wage. In the case 53/81 Levin v Staarssecretaris van Justitie 1982, Mrs Levin was a British national residing in the Netherlands, married to a non-national. She has part-ti e employment as a chambermaid, and earned a wage which was below the minimum considered necessary for the subsistence in the Netherlands. The Court rejected the Dutch interpretation of ‘workers’ in favour of a Union concept. In deciding so, the Court provided a contextual interpretation and referred to the objective of the improvement of standards of living and a harmonious development of economic activities. Part time work, although it may provide an income lower than the minimum subsistence wage in the country concerned, constituted for a large number of people an effective means of improving their living conditions. The effectiveness of Union law would be impaired and the achievement of the objectives of the Treaty would be jeopardised, if only those who worked full-time and attained at least the minimum wage for subsistence were considered to be workers.
Part-time work- Relying on Welfare
The work engaged in by a worker must be provided for remuneration in return for service and be effective and genuine, not marginal and ancillary. In the case of Kempft v Staatssecretaris van Justitie, Kempft, a German national living in the Netherlands, worked 12 hours per week as a music teacher. His earnings were below a minimum subsistence level and he relied on welfare to supplement his income. The Court of Justice held that persons undertaking genuine and effective art-time implement cannot be excluded from the free movement rights accorded to workers merely because their income falls below the minimum subsistence level and is supplemented by welfare benefits. According to the Court of Justice, even if limited employment is supplemented by a social assistance or welfare payments, an individual is still entitled to worker status.
Unpaid work & rehabilitation
Even where no formal wages are paid, an individual may still be a legible under a ‘worker’ status. In the case Steymann v Staatssecretaris van Justitie 1988, although Mr Steymann received no remuneration for his work in a religious community, he was looked after by the community in return for his work. According to the Courtm this was sufficient to constitute an economic activity, However, in the case Bettray v Staatssecretaris van Justitie 1989, the work of someone under a compulsory social rehabilitation scheme to help him overcome his drug addiction was not considered to be an economic activity. This was because the scheme has as its primary purpose the reintegration of potential workers into the labour market. It’s objectives were social, not economic. Effective and genuine work could include someone in occupational training if there was proof that the trainee had worked long enough to become fully acquired with the job performed.
Social reintegration programme
A person following a ‘social reintegration programme’ would be entitled to worker status if the work involved could be regarded as ‘effective and genuine’ economic activity. In the case Trojani v Centre public d’Aide Social de Bruxelles, Trojani, a French national, lived in a Salvation Army hostel in Belgium where, in return for board lodging, and pocket money, he worked for around 30 hours per week as part of a ‘personal socio-occupational reintegration programme’. The Court of Justice found that the benefits in kind and money received by Trojani were consideration for work for and under the direction of the hostel. The Court left the national court to decide whether that work was real and genuine, by ascertaining whether the services performed were part of the normal labour market. This could entail consideration of the status and practices of the hostel, the content of the reintegration programme, and the nature and detail of the work.
Retaining worker status- temporarily or involuntarily unemployed (pregnancy, students, illnesses, accidents etc)
Article 7 (3) of Directive 2004/38 provides that a Union citizen who is no longer working or self-employed may nevertheless retain work or self-employed status. Economic status is retained if the individual is temporarily unemployed through illness or accident; or is involuntarily unemployed after working for over a year or on expiry of a fixed-term contract, if registered as a jobseeker; or embarks on vocational training. In the latter circumstance, that training must be related to the previous employment unless the individual is involuntarily unemployed. Article 7 (3) guarantees continued worker rights.
A worker who loses his or her job will, for a certain period of time, retain worker status for the purpose of EU law. Equally, a person remains a ‘worker’ for as long as they are under a contract of employment, even if they are currently on leave. For example, a woman who established worker status does not cease to be a worker if she is not working because of pregnancy or childbirth, if she is on maternity leave whether paid or unpaid. worker can also retain worker status when they stop working if, for example, they are temporarily unable to work due to illness or accident to they are full recorded involuntary unemployment, or they are involuntarily unemployed and have started vocational training. In the case ‘Lair’ the Court ruled that a person does not cease to be a migrant Union worker just because she or he gives up work in order to become a full-time student. Nevertheless, in order to retain a worker status there must be a connection between the course of study and the migrant’s previous work. The vocational training, therefore, must be relevant to the worker’s previous occupation. This would not apply, however, if the worker became involuntarily unemployed and had to retrain in another occupational activity in order to obtain another job.
Jobseekers
European Union nationals are entitled to enter and remain in another Member State to seek work. Although there is no right to remain indefinitely, an individual would be entitled to remain if making genuine efforts to find work, with a real chance of being employed. Directive 2004/38 provides protection from expulsion for jobseekers who satisfy these condition, and their family members, Article 14 (4). According to Article 24, jobseekers are not entitled to welfare benefits in the host sate. The case of Collins v Secretary for Work and Pensions 2004, decided before the Directive came into force seemed to be inconsistent. Collins who had dual Irish and American nationality, had come to the UK to look for work. His application for jobseeker’s allowance was refused on the grounds that he was not habitually resident in the UK ad was not a ‘worker’ under EU law. The Court of Justice acknowledged that in the earlier decisions it had denied jobseekers entitlement to financial benefits but referred to its more recent judgments on Union citizens’ Treaty right to non-discrimination, under Article 18. The Court held that the equality principle in Article 45 (2) included a right to a financial benefit ‘intended to facilitate access to employment in labour market of Member State’. Nonetheless, a residence requirement attached to a jobseeker’s allowance may be justifiable by proportionate and non-discriminatory objective factors. The required residency period must be no longer than is necessary for the authorities to e satisfied that the individual is genuinely seeking work.
Rights to reside/right to enter and remain for workers
The Directive 2004/38 explains workers free movement rights contained in Article 45 of the TFEU. It sets out the right of workers who are Union citizens to enter and reside n another Member State for more than three months(Articles 5 s.1 and 7 s.1) and the right of permanent residence after five years (Article 16). Family members, irrespective of nationality, accompanying or joining the Union citizen also have the right to enter and remain (Article 5 s.2 , 7.s1 d and 7 s.2) and the right to permanent residence after five years (Article 16). One of the first cases to affirm the right of residence granted in the Treaty is the case of Jean Noel Royer 1976. Mr Royer, a French national, had several convictions in France. He joined his French wife in Belgium where she worked, but, when entering Belgium, did not comply with the administrative formalities of entry. He was then ordered to leave Belgium. Although h left, he returned a few months later and again failed to comply with entry formalities. Eventually, Belgium issued an explosion decree based on Mr Royer’s personal conduct being a danger to public policy and the fact that he failed to observe the conditions attached to the residence of aliens in Belgium, i.e. that he did not possess a residence permit. Among other questions the Court held that the right of a worker to enter a Member State and reside there is conferred directly from the Treaty and is not the result of a Member State’s conferral of a residence permit.
Freedom from discrimination
Freedom of movement entails the abolition of discrimination between workers of the Member States as regards employment, remuneration, and other conditions of employment, under article 45 (2). The ‘Regulation 492/2011 clarifies the scope of the right, covering two main areas; eligibility for employment equality of treatment in employment. Article 1 states that any national of a Member State has the right to take up and pursue employment in another Member State with the same priority and under the same conditions as host state nationals. Article 3 and 4 of the Regulation prohibits national provisions limiting applications or offers of employment or laying down special recruitment procedures, advertising restrictions, and other impediments or limiting by number or percentage the employment of EU migrant workers.
The case ‘Commission v France (French Merchant Seamen), ministerial orders issued under the French Code du Travail Maritime, 1926 imposed a ratio of three French to one non-French crew members on ships of the merchant fleet. By refusing to amend the relevant provision, France was in breach of the Treaty. However, Regulations 492/2011 permits language requirements, provided thee are necessary by reason of the nature of the post to be filled. In the case, Groener v Minister for Education 1989, Irish rules required lecturers in Irish vocational schools to be competent in the Irish language. Although the teaching post at issue did not entail the use of Irish in the classroom, the Court of Justice held that the requirement would be justified provided it formed part of national policy to promote the use of Irish as the first official language under the Irish Constitution. Nevertheless, a requirement to hold a particular language qualification would be unlawful, unless it could be justified by the factors unrelated to nationality and was proportionate.
Access to employment in the public service - Social advantages & other benefits
Member States may restrict or deny access to employment in the public service on grounds of nationality under article 45 (4) of the TFEU. This provision applies only to access to employment. Discriminatory conditions of employment infringe the free movement provisions. In case 152/73 Sotgiu v Deutsche Bundespost 1974, Mr Sotgiu, a migrant worker from Italy, received a lower separation allowance for working in Germany than those whose place of residence when they were first employed was in Germany The Court held that this was an indistinctly applicable measure which was nevertheless discriminatory as it affected migrant workers more. Moreover, in the case ‘Commission v Belgium (Public Employees), under Belgian law, certain work for local authorities and on the railways, including jobs such as electrician, joiner, trainee driver, loader, plate layer and shunter, was reserved to Belgian nationals. Belgium argued that entry to public office was a matter for Member States. The Court of Justice disagreed, insisting on the uniform interpretation and application of Article 45 (4) throughout the EU and defining ‘public service’ posts as those involving ‘the exercise of power conferred by public law’ where there was a ‘responsibility for safeguarding the general interests of he State. The posts in question fell outside of the scope of Article 45 (4).
Residence requirements- Social Benefits
Access to social and other benefits by workers may be conditional on the satisfaction of a residence requirement. The Court has generally sought to remove unjustified obstacles to freedom of movement resulting from different laws on social security. In the case De Cuyper 2006, the Court came to the conclusion that a residence requirement could be justified. Mr De Cuypers, a Belgian national, was granted unemployment allowance in Belgium. In receiving the allowance he declared that he was living alone, and living in Belgium. During a routine check, the applicant admitted that he had been living in France and returning to Belgium every three months. When the allowance was suspended, Mr De Cuyper appealed. The Court donut that the benefit in question was an unemployment allowance, even though the receipt was not required to sign on or be available for work. The residence requirement placed on the unemployment benefit by the Belgian authorities infringed Mr De Cuyper’s right to free movement and residence of Union citizens within the territory of the Member States of Union.
However, the Court noted that such restrictions can be justified if it is based on objective considerations of public interest independent of the nationality of the persons concerned and proportionate to the legitimate objectives of the national provisions. Furthermore, the Court stated that ‘a measure is proportionate when, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain it. The Belgian authorities argued that the residence requirement was necessary in order for inspectors to monitor the status of benefit claimants, and that this would be impossible if claimants lived in other Member States. The Court agreed that less restrictive monitoring practices would not have been capable of achieving the objective pursued and that the residence requirement was therefore justified.
Right of residence of worker’s family members- Education etc
The Regulation 2434/92 and the Directive 2004/38 were interpreted widely by the Court in relation to rights for workers’ families. This extended the material scope of the regulations to include elements such as income support, old-age benefits and disability allowances as regards migrant workers themselves. The personal scope of Regulations was also extended, as the aim of the legislation was the full integration of the migrant workers into the host state, which, therefore, had to include his or her family and any dependants. Family members include spouses and civil partners; children or grandchildren or great-grandchildren under the age of 21. It also includes parents, grandparents and great-grandparents under article 2 (2) of Directive 2004/38. An EU citizen who moves to another Member State can take his or her family members along, even if the latter are not EU citizens themselves; the same is true when the EU citizen later returns to his or her home Member State. This does not imply that the family must live under the same roof permanently.
Right of residence of worker’s ex family members - separation/Divorce
Directive 2004/38 has confirmed that, in certain circumstances, a family member does not necessarily lose their right to reside that basis when they cease to belong to one of the categories of family members set out in the Directive 2004//38. article 13 (2) (a) of Directive 2004/38 states that divorce or annulment proceedings or termination of the registered partnership will not entail the loss of the right of residence of an EU citizen’s family — who are not nationals of an EU Member State —as long as the registered partnership not only lasted for at least three years prior to annulment, but the partners also spent at least one of those years in the host Member State. In the case 267/83 Diatta v Land Berlin 1985, a separated, albeit not divorced, wife of a worker living separately could not, therefore, be denied a right of residence. This right of residence is not an independent right, but is derived from that of the worker. However, as R v Secretary of Sate for the Home Department 1982 shows, this matter is not entirely clear-cut. Mr Sandhu was an Indian national whose German wife had returned to Germany with their child when the marriage had broken down. After a visit to Germany mr Sandhu was refused entry into the UK and the Court of Appeal (now Supreme Court) considered his rights had come to an end when his wife returned to Germany.
Education for members of workers’ families
Under Article 12 of Regulation 1612/68, children of nationals of one Member State who fulfil the worker criteria, residing in the same host Member State as their parents enjoy the same educational rights as nationals of that state, including connected rights such as grants. They have access to courses of general education, apprenticeship and vocational training under the same conditions as children of nationals. In the case 77/72 Michel S v Fonds National de Reclassement des Handicaps 1973, the disabled son of an Italian worker in Belgium was entitled to Belgian disability benefit following the death of his father. The Court held that his rights did not just cover access to courses; as Article 12 of Regulation 1612/68 called upon Member States to encourage children of migrant workers to attend courses ‘under the best possible conditions’ and this meant that the list of educational arrangements in the Regulation should also include disability benefit.
Exceptions to the free movement of persons/workers- Public policy
Directive 2004/38, Article 27 requires that measures taken on grounds of public policy or public security be proportionate and based exclusively on the personal conduct of the individual concerned. The personal conduct must represent a present threat to the requirements of public policy. The public policy requirement must, as a general rule, be satisfied at the time of the expulsion, the national court taking account of matters demonstrating a diminution of the threat and occurring after the original decision, especially where a long time has elapsed. Directive 64/221 required that measures justified on grounds of public policy or public security be based exclusively on the personal conduct of the individual. In the case, Van Duyn v Home Office 1974, Yvonne van Duyn, a Dutch national, challenged the UK’s refusal to allow her entry to work for the Church of Scientology, an organisation considered by the UK to be ‘socially harmful’. Van Duyn maintained that the public policy ground did not apply, arguing that her association with the Church did not constitute ‘personal conduct’. The Court of Justice held that present association with an organisation, reflecting participation would not justify restrictions.
