Lecture 10- Workers PDF

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Lecture 10- Workers Today’s Lecture: • Who is a worker? • What rights do workers enjoy? • How do I get rid of a worker? Article 45 TFEU:

Always has to be a proportionate response. Who qualifies as a worker? • •

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Not defined in the Treaties … See Case 66/85 Lawrie-Blum v Land Baden-Würtetemberg. • Lawrie-Blum is a British national who is a trainee teacher in Germany. Is she a worker? Cross-border element which is required in EU law. • Key aspect of a worker 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’. Compare services: a similar definition but temporary services. Establishment? Self-employed!

What counts as ‘remuneration’? • The CJEU will try its best to identify adequate remuneration so that Article 45 and associated law can protect the economically-active EU citizen.

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Case 53/81 Levin: working part-time as a chamber maid for less than minimum wage. Court held that this does not matter, remuneration includes work for less than the minimum wage Case 139/85 Kempf: includes part-time work. Part-time waitress in a coffee shop, has to supplement her income by social assistance to top-up her income. EU law prevented her accessing this benefit. Stated it did not matter that her income did not provide her with a sustenaible income. Steymann: a plumber works for the Bhagwan community’s commercial enterprises in exchange for his ‘keep’- lodgings and food, does not actually get paid money. ECtHR held payment in kind can count as a remuneration, therefore, worker within EU law. Case 344/87 Bettray: paid work as the result of court-ordered rehab is not remuneration. Idea of choice.

The economic activity must be ‘effective and genuine’: •

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Sometimes obvious: • Case C-415/93 Bosman: professional footballer, employed by club in Belgium. • Lawrie-Blum: teacher or trainee teacher • Levin: part-time chambermaid even though paid less than minimum wage. Sometimes less obvious – the national court ultimately decides. General principle: the Steymann/Bettray distinction. Trojani: works under direction of the Salvation Army for 30 hours per week in exchange for lodgings: national court can decide. Raulin: national court can decide if a zero hours contract is sufficient. Not a hard and fast rule. Case C-413/01 Ninni-Orasche: Studying, if you are a worker in EU law you get certain rights in education. Worked a few months in Germany, thus, entitling her to benefits as she was a worker. Held that even a few months of service counts as effective and genuine activity. Motive for work is relevant.

Benefits of being an EU worker under Art 45

Lecture 10- Workers Fleshed out by two pieces of secondary legislation:

Regulation 492/2011- read Article 7.

What about job-seekers? • • • • • • •

Case C-292/89 Antonissen: Article 45 must apply to job-seekers; otherwise the right to ‘move for the purpose of employment’ would be severely reduced. Job-seekers cease to be workers when they no longer have a genuine chance of being employed. Antonissen: six months to seek work; permissible. Case C-344/95 Commission v Belgium: a strict three months; impermissible. See also Collins cited later … Codified in Directive 2004/38, Article 14(4)(b). There is no set limit. The issue is whether you have a genuine chance of being employed. Note: Directive 2004/38 allows non-economically active EU citizens to remain if they have sufficient resources to support themselves, includes private health insurance.

Measures impeding the free movement of workers: direct discrimination • • •

These rules will bite if they affect any aspect of Article 45(3) or the articulations of them found in Regulation 492/2011. Case 167/73 Commission v France: merchant ships required a certain percentage of crew to be French. Bosman: the ‘3+2’ rule in UEFA competitions – note that this was not a national law, it is a rule imposed by a private association which governs a certain profession.

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Frequently occurs where worker access to benefits or other social advantages are made conditional on something which home state nationals can more easily (or only) satisfy. Case 15/69 Ugliola: German workers’ security of employment included time spent in the Germany army. Case 152/73 Sotgiu: separation allowance increased for workers residing and working within Germany but not for those who work in Germany but reside abroad.

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Case 379/87 Groener: a requirement that a teacher working in Ireland is competent in the Irish language – this might be proportionate in some circumstances but not in others. Note: language requirements may be permitted under Article 3 of Regulation 492/2011.

Measures impeding market access: • Neither directly or indirectly discriminatory on grounds of nationality but still impeding free movement. • Bosman: Bosman is out of contract with RSC Liège. He wants to move to US Dunkerque – but the UEFA rules required a fee to be paid even though he was out of contract. • Case C-232/01 Van Lent: rules prohibiting those domiciled in Belgium from using cars registered in another Member State. Workers and their families: residence rights • • • • •

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Case C-48/75 Royer: residence cards cannot be demanded. The right is an EU law right; residence permits are merely confirmation. Directive 2004/38, Article 6: a initial right of entry for up to 3 months. Directive 2004/38, Article 7(1)(a): economically-active EU citizens can reside for as long as they are workers or are established Directive 2004/38, Article 7(2): so too can their family members even if not EU nationals. Case 59/85 Netherlands v Reed: not married, long-term same sex relationship. This is because families ‘can assist his integration in the host state and thus contribute to the free movement of workers’. What is a family? See Directive 2004/38, Article 2(2). • Spouse, partner with registered partnership, direct descendants or dependents under the age of 21, dependent direct relatives in the ascending line (includes grandparents).

All family rights are parasitic on the worker or EU citizen: •

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Case C-370/90 Surinder Singh: Indian national marries a UK national. They move to Germany and return to the UK. British law is no longer applicable here because free movement rights had been exercised. It’s an EU issue. Clearest demonstrations are where children are involved or where there is a divorce … • Case C-316/85 Lebon. Rights given to children of workers, e.g. to education under the Regulation or to other social advantages (see Article 10), cannot be claimed where this is no longer advantageous to the worker. • Case C-413/99 Buambast: divorce; the non-EU spouse is the child’s primary carer. She can remain until the children have finished their education.

Workers and ‘social advantages’:

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Codified by Regulation 492/2011; previously in Regulation 1612/68. See Article 7 in particular. Case 207/88 Even: a social advantage is something ‘generally granted … because of their objective status as workers or by virtue of the mere fact of their residence on the national territory’. Even saw Belgian pensions take into account service with the Allies in WW2. It was not a social advantage available to EU workers. What is? Case 65/81 Reina: a childbirth loan – aids all low-income workers/residents. Case C-138/02 Collins: jobseekers allowance, but this can require habitual residence.

Expelling or denying entry to a worker: • Article 45(3): limitations permissible for public policy, public security, public health. • Definitions provided in Directive 2004/38/EU – codifying existing case law. The same definitions apply to the justifications in Article 52 TFEU for provision of services and right to establishment. • Public health: see Directive 2004/38, Article 29: epidemic potential as defined by WHO. • Policy and security: more complex … Public policy/security exemptions: • •

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Article 27 of Directive 2004/38: must be proportionate and relate only to personal conduct (Van Duyn!). Case 30/77 Bouchereau: drug dealer. expulsion can only be because personal conduct is a ‘genuine, present, and sufficiently serious threat to the fundamental interests of society’. Codified in Directive 2004/38, Article 28. Cases 115 and 116/81 Adoui: prostitutes. If the conduct does not lead to punishment for your citizens, cannot expel EU citizens for it; Case C-100/01 Olazabal – must give rise to ‘genuine and effective measures’ to combat the behavior. Case 36/75 Rutili: what other measures can be taken by the state short of expulsion? Calfa: no blanket punishments. Case C-145/09 Tsakouridis: drug dealer in gang. ‘… the nature and seriousness of the offence committed, the duration of residence of the person concerned in the host Member State, the period which has passed since the offence was committed and the conduct of the person concerned during that period, and the solidity of the social, cultural and family ties with the host Member State. In the case of a Union citizen who has lawfully spent most or even all of his childhood and youth in the host Member State, very good reasons would have to be put forward …’.

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Workers are defined using Lawrie-Blum Workers have rights within Article 45 … … these are expanded upon in Directive 2004/38 (residence, families) and Regulation 492/2011 (social and other advantages).Such advantages assist the worker’s integration into the host state Key principle: equal treatment.

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Expulsion: Article 45(3), Directive 2004/38....