Free movement of persons - workers Flashcards
Test for free movement of persons
a) When does EU apply
Personal - nationality of EU MS (Art 20(1) TFEU)
Material - if issue devolved to EU
Territorial scope - movement from one MS to another
b) Breach of EU law
Source of test for breach of EU law
Art 18 TFEU
Earlier test for breach of EU law
Non discrimination test
a) Direct discrimination based on nationality (Reyners, Commission v France)
b) Indirect discrimination
Exception - ‘objectively justified and proportionate to aim pursued’ (O ‘Flynn)
Recent test for breach of EU law
Obstacle/hindrance to free movement = market access test
Includes if rule hinders residency (Zambrano; but compare with McCarthy, Dereci)
Limit to market access test
a) States free to regulate internal situations, may lead to reverse discrimination (Sauders vs Rutili)
Exception - Zambrano
b) Remoteness: application of applying EU law too hypothetical (Moser, Kremzow, Graf)
c) Contours of test too vague (Metock)
Rights of exit
Art 4, Directive 2004/38
Includes measures which penalise own nationals for choosing to work abroad
Terhoeve (higher social security contributions)
Masgio, Hans van Lent, Koebler (teaching periods abroad not recognised)
Rights of entry
Art 5(1), Directive 2004/38
Additional conditions to rights of entry
a) Visas for non-EU family, but free of charge and under accelerated procedures (Art 5(4), Directive 2004/38)
b) Refusal of entry would be disproportionate if TNC spouse could prove identity and marital ties and no evidence of threat to pp/sec/health (MRAX)
c) Entry visas must be issued at place of entry (Com v SP)
d) Entry visa must be at least 3 months
e) Inclusion in Schengen Alert System without knowledge of ground for inclusion does not justify refusal of entry of family (Com v SP)
Rights of residence
Up to 3 months without requirements or formalities (Art 6, Directive 2004/38)
More than 3 months (Art 7, Directive 2004/38)
a) Workers or self-employed persons
b) Sufficient resources for themselves/family members
c) Enrolled at accredited institution to follow course of study
d) Family members accompanying or joining Union citizen who satisfies above conditions
Rights to enter/reside cannot be made conditional upon additional documents over and above residence
Commission v Belgium
Residence permit itself is merely proof of right; source of the right is the Treaty
Royer
MS must allow identification by other means if necessary and must act proportionately
Oulane (Amsterdam cafe hopper from France - deported)
MS is competent to carry out identity checks to ensure compliance with Treaty, and to impose proportionate sanctions on Community workers who fail to comply
Wijesenbeek
Royer
Rights of entry for jobseekers
Not covered by Art 45 TFEU, but have rights ofe ntry and must be given reasonable period of time (e.g. 6 months)
Previously: Antonissen
Now: Art 14(4)(b), Directive 2004/38 - no expulsion if can provide evidence that they are continuing to seek employment, genuine chance of being engaged
Source of workers’ rights
Art 45 TFEU
Meaning of worker
EU law concept, not national law
“Effective and genuine”, not “marginal and ancillary”
(Hoekstra)
Interpretation of worker
Broad, focus on ensuring the effectiveness of Community law, with relevant restrictions (marginal and ancillary) (Levin)
Features of a worker overview
a) Employment relationship
b) Remuneration
c) Real and genuine activities
Employment relationship
Service performed for and under direction of another in return for remuneration (Lawrie-Blum)
Relationship of subordination (Meeusen - husband employed wife)
Services outside relationship of subordination is self-employed capacity (Asscher)
Remuneration
Steymann (Belgian in commune - payment in kind)
Activities not marginal and ancillary, but real and genuine
Bettray (activities part of drug rehab programme) versus Fenoll (disabled person in French work rehab programme)
Status of Part-time workers
Generally covered by Art 45 TFEU
a) even if wages are below minimum wage/subsistaence (Levin)
b) even if claimant must supplement income from private funds (Kempf)
Status of Jobseekers
Included, but no indefinite right, limited to 6 months or longer if evidence is provided of genuine chances of being engaged (Antonissen)
Claimant’s intentions
Irrelevant as long as the “effective and genuine” requirement is satisfied (Levin - moved to Holland to get visa for H when H denied UK visa)
Nature of legal relationship under national law between employer and employee
Irrelevant (Lawrie-Blum)
Sphere of emplyment
Immaterial
a) Sporting activities for commercial purposes (Bosman, Lehtonen)
b) Prostitution (Jany)
Number of hours worked
Irrelevant (Raulin, Vatsouras)
Employers vis-a-vis Art 45 TFEU
Can be used (Clean Car Autoservice - discrimination in national law for recruitment processes of foreign workers)
Substantive rights for worker - main legislation
Art 18 TFEU (no discrimination on nationality grounds)
Art 45 TFEU (specific expression to principle of non-discrimination for free movement of workers)
Regulation 492/2011 (free movement of workers; equality of treatment; tax and social advantages)
Core right of equal treatment and non-discrimination
Article 7, Regulation 492/2011
Strengthened by Article 24, Directive 2004/34 (general right to equal treatment for all Union citizens and families)
Overview of scope of right to equal treatment and non-discrimination
a) Access to employment
b) Conditions of employment
c) Discrimination in tax and social advantages
d) Market access
e) Access to education
f) Rights of family members
Access to employment
a) Direct discrimination Total bans (Com v Italy - private security firms, Marsman v Rosskamp - rule for legal protection against dismissal for seriously disabled workers)
Quotas (French Merchant Seamen)
b) Indirect discrimination
Scholz (previous employment by Italy)
Exception: language requirements (Art 3(1), Regulation 492/2011)
Subject to proportionality test and justification
Groener (art teacher - Irish Gaelic language test)
Angonese - horizontal application
Conditions of employment
a) Length of employment contracts (Allue and Coonan)
b) Requirement of previous residency in Host State (Clean Car)
c) Recognition of overseas experience (Ugliola, Kalliope, Koebler)
Tax and social advantages
Article 7(2), Regulation 492/2011
Tax
National rules that treat residents and non-residents differently or involve ‘barrier to exit’
a) Terhoeve (higher social security for those who work outside)
b) Pusa, Turpeinen (higher pension taxes for Finnish nationals that retire in Spain)
c) Schwarz (inability to deduct expenses for children’s education abroad in France that was allowed in Germany)
d) Ritter-Coulais (cross-border commuters - filed tax in Germany but cannot deduce mortgage repayment for house in France)
Social advantage
Broad definition (Even)
Limit to social advantages
“Real link” (Geven), unless it “indirectly benefits the main worker” (Hartmann)
a) Fiorina v SNCF
Discount railcard in France
b) Reina
Discretionary childbirth loan in German - Spanish man
c) Maria Martinez Sala
Non-contributory family allowance
d) O Flynn
Funeral benefit based on miles from place of burial
e) D’Hoop
Tide over allowance for children of migrant workers
f) Surname cases
Garcia Avello (double-barrelled surnames, Spanish-Belgian)
Grunkin (combined surnames, Germany-Dutch)
Illonka Sayn-Wittgenstein (aristocratic title)
g) James Wood
Compensation for victims of crime
h) Hendrix
Territorial restriction on paying incapacity benefit to a worker who lived abroad
i) Ibrahim, Texteira
Rights of the carer for children’s education (wife rely on children to remain in Britain until all 4 kids finishing education)
Jobseeker allowances
No access to national social benefits, but Court extended entitlement only where allowances “faciliate access to employment” (Collins, Vatsouras)
Discrimination in market access
Hindrance to mobility (Metock)
Access to education
Article 7(3), Regulation 492/2011
Definition of vocational training
Broad definition (Gravier)
Includes uni education unless general knowledge related (Blaizot)
Type of study, employment must have continuity
Exception to access to education
Non-worker students (Brown v SoS for Scotland)
If not students would be eligible to pay Home fees if they have a job
Wholly internal situations are outside ambit
Saunders, Morson and Jhanjan
Returning migrant
Can be invoked under Art 45 (Levin, Surinder Singh, Terhoeve)
Treaty based limitations to free movement of workers
a) Blanket limitation for employment in the public service
b) Individual based limitation for public policy, security, health
Blanket limitation for employment in the public service
Art 45(4) TFEU
Definition of public service
Broad (Commission v Belgium)
- Direct or indirect participation in exercise of powers conferred by public law
- Special relationship of allegiance to the state and reciprocity of rights and duties
Non-exhaustive list of public service
Armed forces Police Judiciary Tax authorities Diplomatic corps State Ministries Regional government authorities Local authorities Central banks (Commission v Belgium)
Negative examples of public service
Nurse in public hospital (Commission v France)
Secondary school teachers (Bleis)
General posts in health, education, post, telecomms, radio, television, water, gas, electricity (Commission v Luxembourg, Commission v Belgium, Commission v Greece, Commission v Spain)
Participation in exercise of public power must be regular not just minor (Anker)
Use of Art 45(4) TFEU
Only access to employment, not conditions of employment within public service (Sotgiu)
Individual measure for pp/sec/health
Art 45(3) TFEU
Strict interpretation (Van Duyn)
Stages for individual measure for pp/sec/health
a) Scope of derogation
b) Proportionality test
c) Procedural protection
Stage 1 scope of derogation: Application based on years of residence
Art 27, Directive 2004/38
0-3 months
Public policy
Public security
Public health
3-60 months
Public policy
Public security
5-10 years
Increased protection under Article 7(1), Directive 2004/38 (Joined cases B and Vomero)
Serious grounds of public policy
Serious grounds of public security
+10 years
Article 28, Directive 2004/38
Imperative grounds of public security
How to count years of residence
Continuous (MG)
Time in prison don’t qualify (Onuekwere) unless integrative links between citizen and Host not broken (Joined cases B and Vomero)
Definition of public security
Tsakouridis (drug trafficking)
PI (sexual coercion, sexual assault and rape)
Stage 2 Proportionality test for public policy/public security
Article 27(2), Directive 2004/38
Threat must be fundamental
Bouchereau (low level drugs)
Purpose of derogation
Not for general deterrence (Calfa - Greek re-entry ban for convicted criminals)
Home State can ban own citizen from exiting to comply with travel ban imposed by another MS
Jipa
Limit to Home State’s ability to ban own citizen from travel
Personal conduct is genuine, present and sufficiently serious threat to a fundamental interest (Gaydarov - convicted drug-dealer travel)
Not serious enough: Aladzov (non-payment of tax), Byancov (non-payment of debt)
Not when Host state does not even adopt genuine and effective measures to combat same conduct by own nationals (Adoui and Cornuaille)
Territorial scope of refusal
Entire national territory, not particular sections, unless similar actions are available in Host (Rutili)
Exception: foreign nationals can be subject to less severe measures, not necessary that similar measures are capable of being applied (Olazabal)
Past membership of organisation
Irrelevant but present membership can be taken intoa ccount so far as it reflects participation reflects identification with aims/design (Van Duyn, B and D)
Human rights factors in proportionality
Have to respect fundamental rights as guaranteed under EU law and ECHR (Mary Carpenter)
Balance between State and individual interests for proportionality (Orfanopoulos and Oliveri - deportation - no family in country of origin)
Stage three procedural protection
EU citizen does not need to be fully informed of decision grounds (ZZ)
General right to judicial/admin review (Art 31 of Directive 2004/38) - legality and facts (Art 31(3))
Even if expelled, can present case in person (Dorr and Unal)
Can apply for lifting of temporary ban after reasonable time, no more than 3 years (Art 32, Directive 2004/38)
Material change in circumstances (Adui and Shinghara)
Custodial order can be reviewed if longer than 2 years (Art 33)
