Free Movement of Workers PDF

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Summary

Free Movement of Workers - Some states see free movement as a cheaper mean of achieving their goals, cheaper to import expertise than to train Central goal of Europe, the increasing and raising standards of living, allowing individuals to move to another state for a better life by utilising their ex...

Description

Free Movement of Workers -

Some states see free movement as a cheaper mean of achieving their goals, cheaper to import expertise than to train Central goal of Europe, the increasing and raising standards of living, allowing individuals to move to another state for a better life by utilising their expertise Without free movement, countries can suffer because in labour markets with a low supply they will have high labour costs and will not be able to be competitive All free movement rights are directly effective and enforceable in the courts of MS as fundamental rights

Overview -

Article 45 of the TFEU Directive 2004/38 Regulation 1612/68 now 492/2011 Transitional Periods – Current debate post 1st Jan What about the self-employed

How does FMW fit in? -

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One of the fundamental Freedoms Up until 1957 no free movement rights, in 57(treaty of rome) they realised there was a need to promote an economic system across Europe and ended up with a general right of free movement regardless of sector and occupation and abolishing the barriers to free movement to establish the internal market Differs from free movement of goods

Development of the Right -

Originally for economic reasons Early 90s high point o Directive 93/96(students) o Directive 90/364 o Regulations 1251/70 and 90/365(Retired persons) o All now within Directive 2004/38

Article 45 • 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 ) t os t a yi naMe mb e rSt a t ef ort hep ur p os eo fe mp l o yme nti na c c o r da n c ewi t ht h e p r o v i s i onsg o v e r ni n gt hee mpl o y me ntofn a t i ona l soft ha tSt a t el a i dd o wnb yl a w, r e gul a t i o no ra dmi ni s t r a t i v ea c t i on; •( d ) t or e ma i ni nt het e r r i t or yo faMe mbe rSt a t ea f t e rh a vi n gbe e ne mp l o y e di nt ha tSt a t e , s u b j e c tt oc o ndi t i onswh i c hs h a l lb ee mb odi e di ni mpl e me nt i n gr e gul a t i onst obe d r a wnupb yt heCommi s s i on . •4 . Th ep r o vi s i onsoft hi sa r t i c l es ha l lno ta ppl yt oe mpl o yme nti nt hepub l i cs e r v i c e . Cf. Article 18(non-discrimination) - Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.

TEXTBOOKNOTES Directive 2004/38 Article 3(1) provides that the Directive applies to all EU citizens exercising their right to move to, or reside in, a Member State other than that of which they are a national, and to ‘family members’ who accompany or join them. Article 2(2) defines ‘family members’ as the EU citizen’s: (a) spouse; (b) registered partner, if the legislation of the host Member State treats registered partnerships as equivalent to marriage; (c) direct descendants (i.e. children, grandchildren, etc.) who are under the age of 21 or who are dependants, and those of the spouse or partner as defined above; (d) dependent direct relatives in the ascending line (i.e. parents, grandparents, etc.), and those of the spouse or partner as defined above. This definition of ‘family members’ (which includes third-country nationals) has a broader scope than the former definition set out in Art 10, Regulation 492/2011 (previously Art 10(1), Regulation 1612/68). In addition to family members (as defined by Art 2(2)), Art 3(2) provides that the host Member State shall, in accordance with its national legislation, ‘facilitate’ entry and residence for the following persons: (a) any other family members (whether or not they are EU citizens) who are dependants or members of the household of the EU citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the EU citizen; (b) the partner with whom the EU citizen has a durable relationship, which is duly attested. The host

Member State is required to undertake an extensive examination of the personal circumstances of such persons and shall justify any denial of entry or residence (Art 3(2)). Article 6(1) provides that EU citizens shall have the right of residence in another Member State for a period of up to three months without any conditions or formalities other thanthe requirement to hold a valid identity card or passport (or a valid passport in the case of non-EU family members). Article 6(2) provides that ‘family members’ who do not have the nationality of a Member State (i.e. non-EU family members) enjoy the same rights as the EU citizen whom they have accompanied or joined. The host Member State may require the persons concerned to register their presence in the country within a reasonable and non-discriminatory period of time (Art 5(5), see above). Article 14(1) provides that EU citizens and their family members shall have the right of residence under Art 6, ‘as long as they do not become an unreasonable burden on the social assistance system of the host Member State’ (emphasis added). Expulsion shall not be an automatic consequence if an EU citizen or his family members have recourse to the host Member State’s social assistance system (Art 14(3)). Article 14(4) further provides that (other than in accordance with the provisions relating to restrictions on the right of entry and residence on grounds of public policy, public security or public health) an expulsion order cannot be issued against an EU citizen or his family members, if: (i) the EU citizen is a worker or self-employed person in the host Member State; or (ii) the EU citizen entered the host Member State to seek employment and provided he can supply evidence that he is continuing to seek work and has a genuine chance of being employed. Right of residence for more than three months (Article 7) The right of residence for more than three months remains subject to certain conditions. Article 7(1) provides that EU citizens have the right to reside in another Member State, for a period exceeding three months, if they: (a) are engaged in an economic activity in the host Member State (on an employed or self-employed basis); (b) have comprehensive sickness insurance and sufficient resources for themselves and their family members to ensure they do not become a burden on the social assistance system of the host Member State during their stay. Article 8(4) provides that Member States may not specify a minimum amount of resources they deem sufficient, but they must take account of the personal situation of the person concerned. The amount of minimum resources cannot be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, if this does not apply, higher than the minimum social security pension paid by the host Member State; (c) are following a course of study, including vocational training, at a public or private institution which is accredited or financed by the host Member State. The student must have comprehensive sickness insurance and assure the Member State, by a declaration or equivalent means, that they have sufficient resources for themselves and their family members to ensure that they do not become a burden on the social assistance system of the host Member State during their stay. Article 8(3) provides that Member States may not require the declaration to refer to any specific

amount of resources; or (d) are a ‘family member’ of an EU citizen who falls into one of the above categories. Rights of the worker Although the exercise of workers’ rights may be made subject to national rules relating to public policy, public security or public health (as limited by the provisions of Directive 2004/38; see Chapter 15), Art 45 TFEU provides that an EU worker should have the right to: ● accept offers of employment actually made; ● move freely within the territory of Member States for this purpose; ● stay in a Member State for the purpose of employment; ● remain in the territory of a Member State after having been employed in that state. Procureur du Roi v Royer (Case 48/75) The Court of Justice held that: ... the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the Treaty –in particular to look for or pursue an occupation or activities as employed or self-employed persons, or to rejoin their spouse or family –is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. R v Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) Antonissen was a Belgian national who came to the UK in 1984 to find work. He did not find work. In 1987 the Secretary of State decided to deport him, following his conviction and imprisonment for a drug-related offence. He sought judicial review of the decision and the case was referred to the Court of Justice. The relevant issue here concerned the length of time a person could stay in the territory of another Member State while seeking work. The Court of Justice held as follows: 16. In that regard, it must be pointed out in the first place that the effectiveness of... [Article 45 TFEU] is secured in so far as Community [i.e. Union] legislation or, in its absence, the legislation of a Member State gives persons concerned a reasonable time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged. ... 21. In the absence of a Community [i.e. Union] provision prescribing the period during which Community [i.e. Union] nationals seeking employment in a Member State may stay there, a period of six months, such as that laid down in the national legislation at issue in the main proceedings, does not appear in principle to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged and, therefore, does not jeopardise the effectiveness of the principle of free movement. However, if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he

cannot be required to leave the territory of the host Member State. [emphasis added] Article 6(1), Directive 2004/38 now provides that EU citizens shall have the right of residence in another Member State for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport. A workseeker would therefore be able to rely on this provision. With regard to social assistance, Art 24(2) provides that for the first three months of residence, or while the EU citizen is exercising his right to reside while seeking work under Art 14(4) (b), the host Member State is not obliged to grant entitlement to social assistance to persons other than employed or self-employed workers and the members of their family. EU citizens qualifying for this right of residence benefit from equal treatment with host-country nationals in the areas covered by the Treaty (Art 24(1)). It is not only the worker who will derive benefits from Union law, but also the family of the worker. However, the rights of the family are dependent upon the worker’s status as an EU worker (see above). Although the worker has to be an EU national, the family of the worker does not. The scope of ‘family members’ is governed by Art 2(2) Directive 2004/38 (see Chapter 11). Article 3(1) provides that Directive 2004/38 applies to all EU citizens exercising their right to move to, or reside in, a Member State other than that of which they are a national, and to ‘family members’ who accompany or join them. In addition to ‘family members’ as defined in Art 2(2), Art 3(2) provides that the host Member State shall, in accordance with its national legislation, ‘facilitate’ entry and residence for other defined family members (see Chapter 11).

Regulation 492/2011 provides a wide range of directly enforceable rights designed to enable the migrant worker to obtain employment, and to provide the means: ... by which workers are guaranteed the possibility of improving their living and working conditions and promoting their social advancement... The right of freedom of movement,in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers be eliminated, in particular as regards the conditions for the integration of the worker’s family into the host country. (Preamble) Articles 1, 3 and 4, Regulation 492/2011 (previously Arts 1, 3 and 4, Regulation 1612/68) require equal treatment in relation to applications for employment by those entitled to free movement rights and prohibit national quotas and other systems of limiting access to employment by foreign nationals. Where these exist, it is not sufficient for the Member State to issue instructions that they are not to be applied in relation to EU citizens. They must be repealed or amended so that EU workers are fully

aware of their right to have access to that type of employment. In Commission v France (Re French Merchant Seamen) (Case 167/73), the Court held that a quota system excluding foreign deck officers from French ships, under the Code Maritime, was unlawful under both the former Arts 1–4, Regulation 1612/68 (now Arts 1–4, Regulation 492/2011) and what is now Art 18 TFEU. The Court refused to accept an assurance that it was not enforced against EU nationals. Individuals needed to be able to see a clear statement of their rights in the national legislation. The Court came to a similar decision in relation to the reservation of seamen’s jobs for Belgian nationals (Commission v Belgium (Case C-37/93)). The same principle of transparency was applied by the Court in relation to nursing posts in the German health service (Commission v Germany (Re Nursing Directives) (Case 29/84), para 23). The only exception to this rule is the right given to Member States by Art 45(3) TFEU to exclude EU nationals from the public service. This exception is, however, very narrowly construed by the Court of Justice (see below). It is permissible to make a knowledge of the state’s national language a precondition of appointment, provided that it is necessary for the type of post to be filled. This may be so, even if it is a language which the applicant will not be required to use to carry out the job. In Groener v Minister of Education (Case 379/87), the Court of Justice held that a requirement of Irish law that teachers in vocational schools in Ireland should be able to speak Irish was permissible under the former Art 3(1), Regulation 1612/68 (now Art 3(1), Regulation 492/2011) because of the national policy to maintain and promote the national language as a means of sustaining national education and culture. Under Regulation 492/2011, EU work-seekers are entitled to receive the same assistance as that offered to national workers from the state’s employment offices (Art 5). Recruitment should not depend on medical, vocational and other criteria which are discriminatory on grounds of nationality (Art 6). The Court of Justice has held that refusal by a government department in one Member State to take into account the employment experience of a job applicant in the government service of another Member State amounted to unlawful discrimination (Schöning-Kougebetopoulo v Hamburg (Case C15/96)). Those entitled to Union free movement rights are also entitled to equal access to any form of employment on an equal basis, even that requiring official authorisation (Gül v Regierungspräsident Düsseldorf (Case 131/85)). The only exception to this is in relation to the public service under Art 45(4) TFEU. The general prohibition on discrimination contained in Art 45(2) TFEU covers not only measures that directly impact on the rights of access to employment, but any conditions that may make the engagement of EU workers more difficult or result in their employment on less favourable terms, as illustrated in the following case: Allué and Coonan v Università Degli Studi di Venezia (Case 33/88) The applicants challenged national legislation under which foreign-language assistants’ contracts at Italian universities were limited to one year, where no such limitation applied to other university teachers’ contracts. There was evidence that about a quarter of those affected were from other Member States. On a preliminary reference under what is now Art 267 TFEU (previously Art 234 EC Treaty) the Court of Justice held that, while it was permissible to adopt measures ‘applying without distinction in order

to ensure the sound management of universities’, such measures had to ‘observe the principle of proportionality’. It concluded that the limitation constituted ‘an insecurity factor’ and was precluded by what is now Art 45(2) TFEU (previously Art 39(2) EC Treaty). Under Art 7(1) and (4), Regulation 492/2011 (previously Art 7(1) and (4), Regulation 1612/68), EU workers are entitled to the same treatment in relation to all conditions of employment, including pay, dismissal, reinstatement and re-employment, and they should benefit equally from the terms of any collective agreement negotiated with the management. The former Art 7(1), Regulation 1612/68 was at issue in the following case: Allué and Coonan v Università Degli Studi di Venezia (Case 33/88) The applicants challenged national legislation under which foreign-language assistants’ contracts at Italian universities were limited to one year, where no such limitation applied to other university teachers’ contracts. There was evidence that about a quarter of those affected were from other Member States. On a preliminary reference under what is now Art 267 TFEU (previously Art 234 EC Treaty) the Court of Justice held that, while it was permissible to adopt measures ‘applying without distinction in order to ensure the sound management of universities’, such measures had to ‘observe the principle of proportionality’. It concluded that the limitation constituted ‘an insecurity factor’ and was precluded by what is now Art 45(2) TFEU (previously Art 39(2) EC Treaty). Köbler (Case C-224/01) A Member State’s national legislation provided a special length-of-service increment to university professors who had carried on that role for at least 15 years with a university in that state, the universities being under state control. The national legislation did not allow periods completed at a university in other Member States to be taken into account. The Court of Justice held that such a regime was likely to impede the free movement of workers, given that it constituted a loyalty bonus. The Court of Justice stated that such a loyalty payment could be deemed compatible with Union law if it was imposed because of a pressing public interest reason which was capable of justifying the obstacle to free movement. Although the Court accepted that the objective of the bonus was to reward workers’ loyalty in the context of a policy concerning research or university education, and such an objective constituted a pressing public interest reason, the Court held that the obstacle this would present to the free movement provi...