European Union Law FMOW Revision PDF

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European Union Law Free movement of persons & The EU worker and workers’ rights

Workers • Article 45 TFEU concerns free movement of workers. • According to Lawrie- Blum ( Case 66/85) a worker is a person; o Who performs services o For and under the direction of another person o For remuneration Basic Principle • Article 45(2) prohibits discrimination based on nationality as regards employment, remuneration and other conditions of work and employment. • -This extends to o Direct discrimination ( Case C-283/99 Commission v Italy and C167/73 Commission v France) o Indirect discrimination( Case 379/87 Groener case) Social, Tax and Educational Rights • - Chapter 1 of Regulation 492/2011 • Section 2: Employment and equality of treatment ( Art 7 to 10) • Worker in this section does not extend to job seekers. • Workers from other member states enjoy same social and tax advantages as national workers ( Art 7(2) See Even ( Case 207/78 ) and Cristini ( Case 32/75) • Social advantages include; special fare reduction, interest free childbirth loans, use of minority language in court proceedings as well as educational grants (Lair case) • - Chapter 1 of Regulation 492/2011 • Section 2: Employment and equality of treatment ( Art 7 to 10) • Workers have access to training in vocational schools and retraining centres on the same basis as national workers Article 7(3) • Also children of workers need to be admitted to educational, apprenticeship and vocational training courses under same conditions as children of national workers. Art. 10

• Art. 24 of Directive 2004/38 ( Citizenship Directive) • Applies to all Union citizens and family members who have a right to residence. • Provides right to equal treatment with nationals of the host member state. • Subject to o Limitations in respect of social assistance Article 24(2) of the Directive. o Limitations with regards to maintenance aid for studies Article 24(2) of the Directive.

UNION CITIZENSHIP and Residency Rights • If a person has the citizenship of a European MS he/she is an Union citizen ( Art. 20, 21 TFEU) • An Union citizen can reside in a MS up to 3 months ( Art.6 Dir. 2004/38) • An Union citizen can reside over 3 months in a host MS if he/she is ( Art 7 of the Directive 2004/38) o A worker or self employed o Has sufficient resources and does not become a burden on the social assistance system of the host state • An Union citizen can acquire permanent residence after 5 years ( Art. 16 Dir. 2004/38) of continuous living in a host MS. Limitations on Free Movement of persons/ workers • Public Service Exemption (Article 45(4) TFEU) o This provision shall not apply to employment in the public service. • Derogations ( Article 45(3) TFEU) o Rights of workers are subject to limitations on grounds of public policy, public security and public health. Derogations • Article 27(2) Dir 2004/38 Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. • The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the

particulars of the case or that rely on considerations of general prevention shall not be accepted. • This Directive provision confirms, updates and codifies previous case law Analyse EU law cases by using • Use the IRAC approach • Issues • Rules • Application • Conclusion Case law on the definition of workers • Kempf ( part-time workers) • 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. • Levin (part-time workers) • “any person who pursues employment activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginally and ancillary” • Laurie- Blum (test) • ‘The essential feature of an employment relationship ... is that 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’. • Three essential criteria in order for an employment relationship to arise: the individual must (a) perform services; (b) for and under the direction of another; and (c) in return for remuneration. The individual's particular designation is irrelevant....