Free Movement of Workers - EU Law Week 8 PDF

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Free Movement of Workers – EU Law – Week 8Outline of Free Movement of Workers: 1. Definition of a worker 2. Substance of workers’ rights 3. Exceptions to Art. 45 TFEU.Article 45 TFEU: Freedom of movement for workers shall be secured within the Union. Such freedom of movement shall entail the aboliti...

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Free Movement of Workers – EU Law – Week 8 Outline of Free Movement of Workers: 1. Definition of a worker 2. Substance of workers’ rights 3. Exceptions to Art. 45 TFEU. Article 45 TFEU: 1. Freedom of movement for workers shall be secured within the Union. 2. Such freedom of movement shall entail 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. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. Key Legislation: • Regulation 492/2011 – Free Movement of Workers • Directive 2004/38/EC– Free Movement of Persons

Definition of Worker: • Case 75/63, Hoekstra [1964] ECR 177. • Definition of a ‘worker’ is a question of community, and not domestic law. • The concept of ‘wage-earner or assimilated worker ' has thus a community meaning, referring to all those who, as such and under whatever description, are covered by the different national systems of social security. • Obviously necessary for ‘worker’ to have a community meaning, otherwise MS could unilaterally exclude people from the application of Art. 45 TFEU. •

Case 53/1981, Levin [1982] ECR 1035 • Mrs. Levin was a British citizen, married to a South African non-EC national. Resident in the Netherlands. • Takes up part-time employment as a chambermaid, working around 20 hours a week. Support that she received from her husband brought her up to the minimum amount of subsistence. Despite this, application for a residence permit refused. • Netherlands:

Means of subsistence must come from employment; e.g. you don’t earn enough on this income to survive. • She only took the job to gain a residence permit, so it wasn’t genuine employment. Held, Member States cannot unilaterally restrict the definition of workers. Cannot be argued that you’re not a worker just because you work part time and don’t meet the minimum amount to subsist. You cannot look at the motivation. AG Slynn: “the right enjoyed by workers is ‘dependent on its being shown that the work in the Member State is a genuine and substantial purpose of such national although it need not be the chief purpose.” Court: right to free movement for workers covers ”effective and genuine activity”; “the exceptions to effective and genuine activities were those ‘activities on such a small scale as to be regarded as purely marginal and ancillary.” •

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Sufficient means of subsistence •

Case 139/85, Kempf [1986] ECR 1741 • German national, living and working in the Netherlands. • Working as a music teacher, giving approximately 12 lessons a week. Refused residence permit. • Dutch Govt: the minimum means of subsistence cannot be regarded as genuine and effective work where the person is dependent upon public funds. • Held, that provided that the employment was genuine and effective, it doesn’t matter how that person meets the minimum standard of subsistence.

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Case 66/1985, Lawrie-Blum [1986] ECR 284 • British national, resident in Germany. • Graduated from a German University; sought to commence teacher training. • Denied admission to the state-run teacher training scheme, on grounds of nationality. • Germany: • teacher training was a preparatory stage to her employment as a teacher, therefore does not constitute employment for the purposes of the treaty; She did not work a sufficient number of hours, and she was not paid an amount commensurate with that of a teacher • Held, the essential feature of an employment relationship, however, 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. DEFINITION OF A WORKER.

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Case 196/87, Steymann [1988] ECR 6159 • German national resident in the Netherlands. Works for a brief period as a plumber. • Joins the Bhagwan Community

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The community provided for its members through commercial activities, which included the running of a bar, a discotheque, and a launderette Steymann's contribution to the life of the Bhagwan Community consisted in the performance of plumbing work on the community' s premises and general household duties . He also takes part in the community's commercial activity . Held, participation in a community based on religion or another form of philosophy falls within the field of application of EU law only in so far as it can be regarded as an economic activity. Court adopts broad definition of remuneration. Includes “an indirect quid pro quo” for their work. The fact that work might be conventionally regarded as being unpaid does not mean that it is not effective economic activity.

Conditionality: • Case 197/86, Brown v. Secretary of State for Scotland [1988] ECR 3205 • Brown was a dual British and French National. He had previously resided primarily in France, including his schooling. • Accepted to study electrical engineering at Cambridge. Prior to commencing this study, he worked for a company in Edinburgh, in “pre-university industrial training”. • Goes to Cambridge. Applies for payment of maintenance and for grant, but is refused. • Is a person a worker when they only engaged in employment because of their acceptance to university? On Call/Zero hour contracts • Case C-357/89, Raulin [1992] ECR 1027 • Ms Raulin, French national, moved to the Netherlands. Did not apply for a residence permit. • Engaged in employment as a waitress, in what was described as an ‘on call’ contract – what we now tend to call a zero hours contract. • Shortly after, commences a course in visual arts. • Applies for student support. Declined on basis of her not being a Dutch national or a worker for the purposes of the treaties. • 1. Does the nature of the activities of an [on-call worker] prevent such a person from being considered to be a worker? • 2. Is the fact that a person has exercised an economic activity for only a short time relevant to the answer to the question whether the activities are on such a small scale as to be regarded as purely marginal and ancillary? • 3. May a migrant worker who (voluntarily or involuntarily) has given up their previous occupation in order to study to obtain new skills to further their career retain their status as a worker, in spite of the fact that there is no link between their previous activities and the chosen course of study? • 1. On call contract falls within the scope of “worker”.

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2. Marginality a question of fact, and therefore falls to national court to determine. Limited number of hours might indicate that the work was marginal and ancillary. 3. Course undertaken must be relevant to previous employment in order to continue to hold worker status, unless the person becomes unemployed involuntarily. BECAUSE RAULIN GAVE UP HER JOB, SHE LOST HER STATUS AS A WORKER AND BECAME A STUDENT, AS HER COURSE WAS UNRELATED. SHE WAS NOT SACKED EITHER.

Job Seekers • Case C-292/89, Antonissen [1991] ECR I-745. • Antonissen is a Belgian national living in the UK. • After several years looking for work in the UK he’s imprisoned for drug dealing. • Upon release Home Secretary wants to deport. A argues SoS cannot deport as he’s a community national. • UK Immigration rules also provided that where community nationals are concerned, they can be deported after 6 months of unsuccessful jobseeking. • Held, a strict interpretation of [Article 45(3) TFEU] would jeopardise the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective; • that freedom also entails the right for nationals of Member States to move freely within the territory of the other Member States for the purposes of seeking employment. • Nonetheless in the absence of provision of community law, it is not contrary to EU law for a state to provide that a person should be deported after six months of job seeking, unless that person can prove that they’re still actively seeking work with reasonable prospects. • Illustrates the purposeful approach the the ECJ takes. Goes far beyond the literal meaning of the words, looking at its intended effect. • Also adds that the rights enumerated in Article 45(3) TDEU are nonexhaustive, leaving them scope to develop new rights. • Made it clear that job seekers were second-class workers. Emphasises that they are not the same as people who were actually employed. • Is this justified? • The ECJ Will look to the PURPOSE of article 45. •

Case 316/85, Lebon [1987] ECR 2811. • Lebon was the daughter of a worker. French living in Belgium. Having reached the age of majority, left Belgium for France, and returned on two separate occasions to live independently from her father. • Claimed ‘Minimex’ payment. Had it withdrawn due to lack of evidence that she was looking for work. Four questions. First three dealing with the question of dependent and then independent family members coming and going.

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Fourth, deals with whether or not she was entitled to the Minimex as a job seeker. Held, no. The right to equal treatment with respect to social and tax advantages only applies to workers, and not job-seekers.

Case 344/95, Commission v Belgium [1997] ECR I-1035. • Unlawful for Belgium to require a jobseeker to leave after three months of jobseeking as a jobseeker may be able to demonstrate that they have a genuine chance of finding employment.

Art. 7(3), Directive 2004/38/EC: For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or selfemployed person shall retain the status of worker or self-employed person in the following circumstances: a) he/she is temporarily unable to work as the result of an illness or accident; b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office; c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training Art. 14(4), Directive 2004/38/EC: By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if: Summary: • Definition of a worker: • EU definition (Hoekstra) • Genuine economic activity (Levin) • Monetary payment not required (Steymann) • Need not be full-time/guaranteed (Raulin) • May be related to training (Lawrie-Blum/Brown) • Applies also to jobseekers (Antonissen) • See Directive 2004/38/EC.

Exceptions to Art. 45 TFEU •

Article 45(4) TFEU. • “The provisions of this Article shall not apply to employment in the public service”.

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Case 149/79, Commission v Belgium [1982] ECR 1845. • Held that Article 45(4) was not intended to include menial or generic jobs that simply happened to be in the public service. • Employment in public service requires: • Direct or indirect participation in the powers conferred by public law; • Safeguard the general interests of the state.

Purely internal situations •

C-175/78 R v Saunders [1979] ECR 1129. • Saunders from Northern Ireland. • Convicted of theft in Bristol, and bound over to return to Northern Ireland and not return to E&W for 3 years. She returned to England, whereupon the court asked the ECJ whether she had a right of free movement within the UK under the treaties. • Saunders is a British national resident in the United Kingdom. • Held, situation has to have some connection to Community Law. You have to move take advantage of your rights. • Has some bizarre results. Reverse discrimination.

Substance of Workers rights • • • •

Right of entry – Art. 5, Directive 2004/38/EC Right of residence – Art. 6/7, Directive 2004/38/EC Prohibition on Discrimination – Art. 45 TFEU Employment rights…

Employment rights Regulation 492/2011 on free movement of workers, Art. 1: 1. Any national of a Member State shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State. 2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State. Regulation 492/2011 on free movement of workers, Art. 7: 1. A worker who is a national or 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, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment. 2. He shall enjoy the same social and tax advantages as national workers. 3. He shall also, by virtue of the same right and under the same conditions as national workers, have access to training in vocational schools and retraining centres.

4. Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are nationals of the other Member States. Prohibited on Discrimation •

Direct: • Clearly contrary to Art 45 TFEU • Case 167/73, Commission v France [1974] ECR 359. • Ministerial order requires that employment in the bridge and various other key parts of merchant vessels is limited to French nationals • Such discrimination prohibited by Art. 45 TFEU.

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Indirect: • More difficult to establish • Easier for nationals to satisfy requirements • Examples: • Case 279/87, Groener [1989] ECR 3967. • Indirect discrimination permitted. • Case C-281/98, Roman Angonese [2000] ECR I-4139. • Indirect discrimination not permitted.

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Case 279/87, Groener [1989] ECR 3967. • Dutch national. Worked part-time in an Art College in Dublin. Sought appointment to a full-time post. Appointment to that post was subject to her passing an Irish exam, which she failed. • Considered, inter alia, whether regard was to be had to a policy of the Irish State that persons holding the post should have a competent knowledge of the Irish language, where such knowledge is not required to discharge the duties attached to the post? • Held, Union law does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State.

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Case C-281/98, Roman Angonese [2000] ECR I-4139. • Requirement to have a language certificate issued by Bolzano more onerous for non-residents. • Worker includes job applicants.

Objective Justifications •

Case 152/73, Sotgiu [1974] ECR 153. • Italian national, works for German postal service. • Refused ‘separation payment’ for workers working away from home. • Common practice: workers working away from home often receive allowances.

Should this apply to workers who travel from another Member State for work? • Held, “if the scheme relating to such an allowance takes account of objective differences in the situations of workers according to whether their residence at the time when they take up their employment is within the territory of the state concerned or abroad.” Court will closely scrutinise these justifications though. •

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Case 36/74, Walrave and Koch [1974] ECR 1705. • Dutch cyclists, serve as pacesetters in medium distance bicycle racing. • UCI requires pacesetters in World Championships must be of same nationality as the cyclists who ride in their lee. • Sport is only subject to the Treaties where it constitutes economic activity. • Article 45 TFEU cannot affect the composition of sporting teams, which will be decided solely on sporting, rather than economic grounds. • Is this really an objective justification?

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Case C-415/93, Bosman [1995] ECR I-4921. HUGE FOR FOOTBALL. • Jean-Marc Bosman, Belgian national, played for Liege. • At the expiration of his contract, he sought transfer to Dunkerque, a French team. Dunkerque couldn’t meet his transfer fee, so he was retained by Liege. His wages were subsequently reduced as he was no longer a first team player. • Such rules are likely to restrict the freedom of movement of players who wish to pursue their activity in another Member State by preventing or deterring them from leaving the clubs to which they belong even after the expiry of their contracts of employment with those clubs. • Prohibits the application of transfer fees after the expiry of contractual term. • Obstacles based approach, similar to MEQRs. • Prior to Bosman, was common for national associations to impose quotas on the number of players that can be fielded from another Member State. Argued that it doesn’t preclude employing them. Held, that because actually playing is an inherent part of their employment, restrictions on their ability to actually play is bound to affect their chances of gaining employment. • Imposition of nationality requirements contrary to Article 45. • Impact of Bosman: http://www.skysports.com/football/news/11095/10100134/how-thebosman-rule-changed-football-20-years-on

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Professional Football post-Bosman • Leagues are no longer permitted to impose nationality quotas, however both Champions League and Premier League impose “home-grown” players quota. • Premier League: • “All 20 Clubs must include eight Home Grown players out of a squad of 25 for that Premier League season. • A Home Grown player will be defined as one who, irrespective of his nationality or age, has been registered with any club affiliated to the Football Association or the Football Association of Wales for a period,

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continuous or not, of three entire seasons or 36 months prior to his 21st birthday (or the end of the season during which he turns 21).” Objectively justified?

Case C-40/05, Lyyski [2007] ECR I-99. • Sweden required participants in a teacher training school in Sweden to be employed at a Swedish school for their placement. • Lyyski was employed at a Swedish-speaking school in Finland. • Court held that the requirement that you must be employed at a Swedish school was an ‘obstacle to freedom of movement’, however, in this instance it could be justified on grounds of preserving and improving the education system, as well as for assisting in the monitoring of training. Case C-379/09, Casteels v British Airways [2011] ECR I-1379. “Since the scheme at issue in the main proceedings in the present case constitutes an obstacle to the freedom of movement for workers which is, in principle, prohibited by Article 45 TFEU, that scheme can be allowed only on condition that ...