Free Movement of Workers PDF

Preview

Summary

Free Movement of WorkersArticle 45 TFEU, is the basic provision which provides that:‘1. Freedom of movement for workers shall be secured within the Union. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards em...

Description

Free Movement of Workers Article 45 TFEU, is the basic provision which provides that: ‘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) b) c)

d)

4.

To accept offers of employment actually made; To move freely within the territory of Member States for this purpose; To stay in the Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulations or administrative action; 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;

The provision of this Article shall not apply to employment in the public service.’

The Court has repeatedly emphasized the central importance of the twin principles of freedom of movement and non-discrimination on grounds of nationality. Article 45, is said to represent an application, in the specific context of workers, of the general principle in Article 18 TFEU, prohibiting discrimination on grounds of nationality. The ECJ in Walrave and Koch held that Article 45 would apply even where the work was done outside the Community, so long as the legal relationship of employment was entered within the Community. This was extended further in Boukhalfa, in which the Court ruled that the Article applied also to the employment of a Member State national which was entered into and primarily performed in a non-member country in which the national resided, at least as regards all aspects of the employment relationship which were governed by the legislation of the employing Member State. The Court also ruled in Walrave and Koch and Bosman that the provisions of Article 45 are not just of ‘vertical’ direct effect. The Angonese case, subsequently went further and indicated that Article 45 is also horizontally applicable to the actions of individuals, who do not have the power to make rules regulating gainful employment, such as a single employer who refuses to employ someone on the ground of their nationality. Thus, there is a distinction between free movement of workers and that governing the free movement of goods, since the ECJ has made clear that Article 34 applies only to state measures, and not to those adopted by private actors.

Article 45: Worker and the Scope of Protection

Article 46 TFEU provides for the European Parliament and the Council to adopt secondary legislation to bring about the freedoms set out in Article 45. A range of directives and regulations were adopted under this provision to govern the conditions of entry, residence, and treatment of EU workers and their families. Many of these were consolidated by Directive 2004/38 on the free movement and residence of EU citizens and their families. One of the main feature of this directive is that it has introduced the right of permanent residence for EU nationals and their families after five years of continuous legal residence in another Member State. Definition of ‘Worker’: An EU Concept The Court has now and then insisted that the definition of a worker is a matter for EU law and not national law: Hoekstra The position is as follows: 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 marginal and ancillary is treated as a worker. For an economic activity to qualify as employment under Article 45, rather then self-employment under Article 49 TFEU , there must be a relationship of subordination. There is, however, no single EU concept of a worker, and that it varies according to the EU law context in which it arises. Definition of Worker: Minimum –Income and Working-Time Requirements A number of cases have been concerned with the interplay between the economic aspect of free movement, as determined by the level of remuneration, and the social aspect underlying free movement policy. In the Levin case, a number of important aspects arose to this judgment. The ECJ affirmed that the free movement of persons was fundamental to the Community and must therefore be broadly interpreted. The freedom to take up employment is important not only as means towards the creation of a single market for the benefit of the Member States’ economies, but as a right for the worker to raise her standard of living. All workers in the Member States have the right to pursue the activity of their choice within the Community, irrespective of whether they are permanent, seasonal or frontier workers or workers who pursue their activities for the purpose of providing services. Even part time employment is not excluded from the field of application of the rules on freedom of movement for workers. However, their activities must be effective and genuine to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. In Kempf, the issue was taken a step further, stating that when a genuine part-time worker sought to supplement his earnings below the subsistence level, it was irrelevant whether those supplementary means of subsistence derived from property or from the employment of a member of a family or from public funds of the Member State in which he resided.

The Court has ruled that the practice of sports falls within EU law in so far it constitutes an economic activity: Bosman It has also ruled that fisherman who are paid a share of the proceeds of sale of their catches can be considered to be ‘workers’ despite the irregular nature of their remuneration: R v Ministry of Agriculture, Fisheries and Food. In Lawrie-Blum, the Court held that ‘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.’ In Steymann, the concept of remuneration was and hence of economic activity was pushed a bit further. The fact that the work might be seen in conventional terms as being unpaid did not mean that it was not effective economic activity. Steymann, provided services of value to the religious community, which would otherwise have to be performed by someone else, and in return for which his material needs were satisfied. Definition of ‘Worker’: Purpose of Employment The general rule is that the purpose for which the employment is undertaken will not be relevant in determining whether a person is a worker. Provided that the employment is genuine and not marginal it will benefit from Article 45. There are, however, cases in which some account has been taken of the purpose of the employment. In Bettray, the purpose for undertaking the work was crucial to the ECJ’s decision. The fact that the main and the sole purpose of the work was to rehabilitate the person and to find work suited to their capabilities rather than to meet genuine economic needs resulted in a ruling against Bettray. On the other hand, in Trojani v CPAS, although ECJ left it to ultimately to the national court to decide whether his employment was real or genuine, it made clear that the fact that social reintegration was the main purpose of the employment would not itself disqualify the employment from being considered as such. Instead, the crucial factor was whether the services ‘are capable of being regarded as forming part of the normal labour market.’ Brown, remains an authority for the proposition that an EU national who undertakes work for a temporary period purely as a means to qualify for an educational course will not be entitled to all the same advantages as a fully-fledged ‘worker’ under EU law. In Ninni-Oraschi, the ECJ again reiterated the importance of objective factors such as hours of worked and remuneration over other subjective factors such as motive and conduct.

Definition of Worker: The Job Seeker

In Antonissen, it was held that a job seeker would come within the definition of a worker, clearly enunciating a purposive approach adopted by the ECJ. It concluded that a literal interpretation would hinder the purpose of the free movement of workers. However, the ECJ was clear that the status of an EU national searching for work was not the same as that of an EU national who was actually employed. Member States retained the power to expel a job-seeker who does not have prospects of finding work after a reasonable period of time. In Commission v Belgium and also in Lebon, the ECJ ruled that the social and tax advantages guaranteed to workers under EU law, particularly under Article 7(2) of Regulation 1612/68 (now 492/11), were not available to those moving in search of work. Right to reside for workers Article 45 TFEU, provides workers with right to reside in another Member State for the purpose of employment. One of the first few cases to affirm the right of residence granted in the Treaty was Jean Noel Royer. 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. A migrant worker exercising rights under the Treaties is therefore able to start working before completing any formalities to obtain residence documentation because their right of residence is a fundamental right derived from the Treaties: ITC Innovative Technology Centre GmbH In Maria Dias, it was held that periods of residence based on a permit issued before the transposition of Directive 2004/38 and which do not satisfy the requirements for the criteria of permanent residence cannot be considered sufficient so as to acquire permanent residence under Directive 2004/38. However, if the individual has resided in the Member State for five years before the transposition of Directive 2004/38, the right of residence can only be acquired if the conditions have not been met for less than two consecutive years.

Article 45: Discrimination, Market Access, and Justification It is clear, that rules that discriminate on grounds of nationality, will be caught by Article 45. It is even clear that indirect discrimination, and even impediments to market access, which do not depend on a showing of unequal impact can also lead to an infringement of Article 45. Discrimination whether direct or indirect will be found only where two groups which are comparable in relevant ways are treated differently, or where groups which are not comparable are treated in the same way. Direct Discrimination In Commission v French Republic, the ECJ ruled that Article 45 was ‘directly applicable in the legal system of every Member State’, and would render in applicable all contrary national law. Further, a state can be held in breach of Article 45, where

the discrimination is practiced by any public body, including public universities: Commission v Italy While cases involving direct discrimination on grounds of nationality are much less common, such cases do arise but they raise a strong burden of justification.

Indirect Discrimination Indirect discrimination is also prohibited by Article 45, so that a condition of eligibility for a benefit which is more easily satisfied by national than by a nonnational workers is likely to fall foul of the Treaty. The ECJ has relaxed the requirements for proof of indirect discrimination, ruling in O’Flynn that in order for indirect discrimination to be established it was not necessary to prove that a national measure in practice affected a higher proportion of foreign workers, but merely that the measure was ‘intrinsically liable’ to affect migrant workers more than nationals. A common species of indirect discrimination is where benefits are made conditional, in law or fact, on residence, place of origin requirements, or place of education requirements that can more easily be satisfied by nationals that non-nationals: Ugliola In Commission v Belgium, the ECJ held that a system of retirement pensions points that could more easily be satisfied by workers possessing the nationality of that Member State than by workers from other Member States was indirectly discriminatory, and hence caught by Article 45. A further form of indirect discrimination is the imposition of a language requirement for certain posts, since it is likely that a far higher proportion of non-nationals than nationals will be affected by it: Commission v Greece. However, since such a requirement may well be legitimate, the imposition of ‘conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.’ is allowed: Groener Another form of indirect discrimination is the imposition of a ‘double-burden’ regulatory requirement, which does not recognize appropriate qualifications or certification already received in the home state: Commission v Portugal Obstacles to Access to the Employment market The ECJ has ruled that even non-discriminatory restrictions may breach the Treaty if they constitute an excessive obstacle to freedom of movement: The Bosman Case. It is sometimes difficult to distinguish between cases of indirect discrimination and those where the ECJ intervenes to protect access to the employment market but there are nonetheless cases that fall clearly within the latter category. In Commission v Denmark and Van Lent, the Court condemned national rules which prohibited workers domiciled in one particular state from using a vehicle registered in another Member State, on the basis that these rules might preclude workers from exercising their rights to free movement or might impede access to employment between states.

In Graf, the Advocate General argued that neutral national rules could be regarded as material barriers to market access only if it were established that they had actual effects on market actors akin to exclusion from the market. Thus, the outer boundaries of Article 45 have been clearly articulated. Internal Situations Article 45, does not prohibit discrimination in a so-called ‘wholly internal’ situation. This is sometimes referred to as a situation of ‘reverse discrimination’ since its effect is frequently that national workers cannot claim rights in their own Member State, which workers who are nationals of other Member States could claim there. In Saunders, the ECJ held that since there was no factor connecting the defendant to any of the situations envisaged by Community law she could not rely on Article 45. In De Groot, it has nevertheless been established that a worker will be able to use Article 45 against his or her own state where the worker has been employed and resided in another Member State. Such a worker may then claim that he or she has been discriminated against in relation to, for example, social security contributions or taxation, when returning to work in his or her own Member State. The citizenship Articles (20—25 TFEU), explicitly introduced by the Maastricht Treaty in 1992 introduced the concept of Union citizenship, together with a number of associated rights, and for the first time in its case law, The Court of Justice established that EU citizenship alone can trigger the application of EU law in certain situations thereby formalizing the recognition of the status of ‘citizen of the Union’, with the associated rights and duties, for every national of a Member State: Zambrano, McCarthy

Article 45(3): Treaty Exceptions Article 45(3), provide exceptions to a breach of Article 45 on grounds of public policy, public security and public health. Articles 27—33 of Directive 2004/38 govern the restrictions on the right of entry and residence, which Member States may impose on grounds of public policy, security or health. An innovation of Directive 2004/38 has been the introduction of three levels of protection against expulsion on these grounds: (i) (ii) (iii)

A general level of protection for all individuals covered by EU law; An enhanced level of protection for individuals who have already gained the right of permanent residence on the territory of a Member State; A super enhanced level of protection for minors or those who have resided for 10 years in a host state.

Directive 2004/38, does not define public policy or public security. The Member States are therefore free to determine the scope of their public policy within their territories provided that the limitation is proportionate to the risk and provided it is applied equally in the state to local citizens and EU citizens alike: Van Duyn

The question then comes down to the amount of discretion a Member State has in penalizing or expelling those it considers as undesirable. In Adoui, the Court did not accept that a Member State could deport those who were working in a non-prohibited (in this case prostitution) in Belgium. In R v Pierre, it was stated by the Court that before making a deportation order on public policy grounds there must be a genuine and sufficiently serious threat affecting one of the fundamental interests of society. The Court has made it clear that Member States are not allowed to use the notion of public policy and public security arbitrarily: Orfanopoulos The Court stated that Directive 2004/38 precluded national legislation which provided for expulsion of foreign nationals without taking into account factual matters which have contributed to the diminution of the present threat. Article 45 TFEU, also precluded national legislation which were based on the presumption that the person must be expelled without proper account being taken of his personal conduct and the danger he represented for the requirements of public policy. In Rutili, the claimant had been banned from entering certain areas of France because of his political activities. The Court said that this ban could only have been accepted if the same ban had been imposed on French citizens as well under the same conditions. Directive 2004/38, apart from codification of the case law just discussed also provides protection against expulsion. The substantive and procedural protection for individuals subject to an expulsion order are now set out in Article 28 of Directive 2004/38. Article 28(1) requires that before making an expulsion order the Member State must take into consideration the period for which the individual has stayed in the host Member State, his/her age, state of health, family and economic situation, social and cultural integration and the extent to his/her links with the country of origin. Enhanced level of protection is provided to the EU citizens under Article 28(2), stating that they may only be expelled for ‘serious grounds’ of public policy or public security. Article 28(3) provides for an even more stringent level of protection for a minor or an EU citizen residing in the host State for more than ten years stipulating that they can only be expelled ‘on imperatives grounds of public security.’ Land Baden v Tsakouridis, reveals the ECJ’s interpretation of Articles 27 and 28 of the Directive and the conditions that must be satisfied for an expulsion to be lawful. This case concerned a Greek national, who had spent most of his life in Germany. After being sentenced to a term of imprisonment of more than five years, he was subject to an expulsion order from Germany. The Court of Justice was asked under what conditions the right to enhanced protection could be lost, and whether Article 16(4) of Directive 2004/38 should be applied. The Court held that when making such an expulsion order, the national authorities should look at all the relevant factors, in particularly, the length and frequency of individual absences from the host Member State and the reasons for the absences. It was also stated that in order for the expulsion to be proportionate where the individual had spent most of his life in the host Member State, the reas...