The Free Movement of Workers Handout PDF

Preview

Summary

LW302 Weeks 8 and 9 The Free Movement of Workers TREATY articles: Article 18TFEU Article 21TFEU Article 45TFEU Article 49TFEU Article 56TFEU Non-discrimination on grounds of nationality (Article 12EC) Right of EU citizens to „move and reside freely‟ (Article 18EC) Free movement of Workers (Article 3...

Description

LW302 Weeks 8 and 9 The Free Movement of Workers TREATY articles: Article 18TFEU Article 21TFEU Article 45TFEU Article 49TFEU Article 56TFEU

Non-discrimination on grounds of nationality (Article 12EC) Right of EU citizens to „move and reside freely‟ (Article 18EC) Free movement of Workers (Article 39EC) Freedom of establishment (Article 43EC) Freedom to provide services (Article 49EC)

Underpinning all three Treaty provisions (Articles 45TFEU, 49TFEU, 56TFEU) is the principle of non-discrimination on the basis of nationality (or seat in the case of corporations). Articles 45TFEU, 49TFEU, 56TFEU are mutually exclusive (Procureur du Roi v Royer Case 48/75).

Article 18 (ex Article 12 TEC) 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.

LEGISLATION: -

DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 – Citizens’ Rights Directive (CRD).

-

REGULATION (EU) No 492/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2011 on freedom of movement for workers within the Union

Also: - Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers1

1

This Directive lays down provisions which facilitate the uniform application and enforcement in practice of the rights conferred by Article 45 TFEU and by Articles 1 to 10 of Regulation (EU) No 492/2011.

1

TREATY OF LISBON Article 45TFEU (ex Article 39 TEC) 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. 4. The provisions of this Article shall not apply to employment in the public service.

The notion of “worker” -

Case 75/63, Hoekstra

The CJEU afforded a “Community Scope” to the term. -

Case 53/81, Levin v Staatssecretaris van Justitie [1982]

Are part-time employees “workers” for EU Law? Although, part-time employment is not excluded, the relevant rules cover only: “the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale to be regarded as purely marginal and ancillary”. - Case 139/85 Kempf v Staatssecretaris van Justitie [1986] What about work providing an income below the minimum means of subsistence in the host state? - Case 196/87, Steymann v Staatsecretaris van Justitie [1988] Do we need “services of a value” to qualify as a worker? - Case C-357/89, Raulin The issue here was the nature of the so-called “on-call contracts”. - Case 66/85, Lawrie-Blum v Land Baden – Wurttembery [1986] The CJEU offered a three-part definition of the term “worker” A “worker” is somebody who works - for a certain period of time - performing services for and under the direction of another person - in return for which he receives remuneration 2

-

Case 344/87, Bettray v Staatssecretaris van Justitie [1989] Is the purpose for which somebody undertakes a job relevant? CJEU: Usually not, provided that employment is a genuine economic activity and not a marginal one, article 45TFEU will apply. In this case the person in question was undertaking therapeutic work as part of a drug rehabilitation programme.

-

Case C-292/89, R v Immigration Appeal Tribunal ex parte Antonissen [1991] After dealing with “part-time employees” soon the main question was: “How far can those seeking for a job benefit from Article 45TFEU?” CJEU: Those who are actively seeking for a job shall have the “semi-status” of a worker.

- Case 316/85, Lebon [1987] Many social and tax advantages guaranteed to workers within EU Law were unavailable to those seeking for a job.

So, the definition of worker: - includes people with minimum wage top-up from benefits: Kempf - includes people paid in kind, ie in shares of a catch of fish: Agegate - ie includes people participating in work of religious community, if they receive accommodation, etc. in return for contributing to market activities: Steymann - doesn‟t include drug rehab programme: Bettray; but narrow interpretation of this (C1/97 Birden, job creation scheme) - includes trainees, „zero-hours‟ contracts: Lawrie-Blum, Bernini, Raulin; au pairs: see Jan. 2008 judgment in Payir - includes fixed-term work: Ninni-Orasche - includes work-seekers for certain purposes: Antonissen, Collins - distinction between workers/students: opinion in Grzelczyk; judgment in Payir Article 7(3) of the Citizens‟ Rights Directive (CRD) 2004/38 now makes provision for those Union citizens who are no longer workers (or self-employed) to retain worker (or self employed) status in four situations: (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 to be related to the previous employment.

3

Rights conferred on workers by EU law Article 45TFEU (39EC) provides the main bundle of rights enjoyed by workers in the EU. More specifically: 1. Freedom of movement for workers shall be secured within the Community. 2. 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. 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 implementing regulations to be drawn up by the Commission.

Rights granted to workers by EU law 1) The “right to access to a post on non-discriminatory terms” is covering all situations where a migrant worker is treated less favourably than the national worker. Regulation 492/2011: Article 4 1. Provisions laid down by law, regulation or administrative action of the Member States which restrict by number or percentage the employment of foreign nationals in any undertaking, branch of activity or region, or at a national level, shall not apply to nationals of the other Member States. 2. When in a Member State the granting of any benefit to undertakings is subject to a minimum percentage of national workers being employed, nationals of the other Member States shall be counted as national workers - Commission v Italy Case C-283/99 An Italian law stating that a certain service can be provided only by Italian companies employing Italian citizens in Italy was in breach of EU law. - Scholtz Case C-419/92 The Court found the refusal by an Italian selection board to take into account a German applicant‟s previous employment in Germany to be unjustified indirect discrimination. -

Groener Case 379/87 – “The language requirement”

4

2) The right to equal treatment while doing that job which prohibits unequal treatment in employment particular in regard to remuneration, dismissal, and should the worker become unemployed, reinstatement or unemployment . (Article 7(1) of Regulation 492/2011) Regulation 492/2011: Article 7 1. A worker who is a national of 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.

-

Allue and Coonan Case 33/88

An Italian law limited the duration of the employment contracts of foreign language assistants, without imposing the same limitation on other workers. -

Ugliola Case 15/69 A German law provided that the period of military service performed in Germany had to be taken into account by an employer when calculating periods of service for the purposes of pay or other benefits

-

Kougebetopoulou Case C-15/96 The Court found that a collective agreement providing for the promotion on grounds of seniority but which took no account of service performed in another MS “manifestly” worked to the detriment of migrant workers and so breached Article 45TFEU. See now: Article 7(4) of Regulation 492/2011.

5

3) Equal treatment in respect of tax advantages . Regulation 492/2011 also guarantees that; Article 7(2) provides for the relevant right. As far as taxation is concerned most of the cases concern the situation of national rules which treat residents differently from non-residents. Discrimination on the grounds of residence can be found as indirectly discriminating against migrants, presupposing that circumstances of residents and non residents are comparable. -

Schumacker Case C-279/93:

A Belgian national lived in Belgium but worked in Germany. Because he was a non-resident his wages were subject to German income tax on a limited basis; this meant that he was denied certain benefits which were available to resident taxpayers. The Court ruled that a “non-resident tax payer who received all or almost all of his income in the state of employment was objectively in the same situation as a resident in that state doing the same work there. The situation of residents and non-residents was therefore comparable and the German rules were found to be discriminatory”.

4) Equal treatment in respect of social advantages: Regulation 492/2011 (article 7(2)) requires social advantages to also be granted on a non discriminatory basis. In Even Case 297/78, the Court defined social advantages broadly to include all benefits: “…which whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers...and the extension of which to workers who are nationals of other MS therefore seems suitable to facilitate their mobility within the Community…”. This concept included benefits granted as of right, or on discretionary basis, those granted after the termination of employment, death benefits, benefits enjoyed by unmarried companions etc

Case C-333/13 Elisabeta Dano, Florin Dano v Jobcenter Leipzig Mrs. Dano is a Romanian citizen who applied for job seekers‟ benefits in Germany. She has not worked in Germany, and is not looking for work either. She has not been trained in a profession and, to date, has not worked in Germany or Romania. She and her son have been residing since 2010 in Germany, where they live in the home of Ms Dano's sister, who provides for them. That is a 'Special non - contributory benefit'.

6

The EU Citizen‟s Rights Directive provides that EU citizens are entitled to equal treatment regarding benefits on the territory of another Member State, except: 1. During their first three months of entry, even if they are workers 2. If they are job-seekers 3. If they are seeking student grants before five years residence. Citizens’ Rights Directive 2004/38 Article 6 Right of residence for up to three months 1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. Article 14 Retention of the right of residence 1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State. Right of residence for more than three months and up to five years Article 7 Right of residence for more than three months 1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or (c) – are enrolled at a private or public establishment, The directive prohibits economically inactive Union citizens from using the host Member State's welfare system to fund their means of subsistence. A Member State can refuse to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State's social assistance although they do not have sufficient resources to claim a right of residence If you do not have sufficient resources to meet your own needs and the needs of your family, you cannot claim a right of residence in a MS (here Germany) under the CRD . Therefore, you cannot invoke the principle of non-discrimination laid down by the directive (Article 24 of the CRD); the directive applies to workers, self employed persons, students and others who have sufficient resources.

7

SO, The right to Residence in another MS is given by EU Law ONLY to: 1) workers or self-employed persons in the host Member State (and their families); 2) Those who are not workers BUT, they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; 3) are enrolled at a private or public establishment during their academic programme Article 3(1) of CRD: "Family member" means (among others): (a) the spouse; Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrӑri and Others The term „spouse‟ in EU Law includes spouses of the same sex. Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory. (A Romanian national married with his same-sex partner of USA citizenship in Brussels and then moved to Romania, where the authorities did not recognise a right of residence to his USA partner due to the lack of recognition of same-sex marriage in Romania).

8

Exceptions to Article 45TFEU: 1) “wholly internal situation” Cases 35 and 36/82, Morson and Jhanjan v Nehterlands [1982] Two Dutch nationals were working in their home country, the Netherlands. They had no right under national law to bring their parents of Surinamese nationality into the country to reside with them. Since, Dutch Law did not permit such possibility they tried to rely on EU Law. In order for EU Law to apply, there has to be a link between the relevant situation and EU Law. This usually exists where the person in question has exercised his right to free movement within the EU. Once this connecting factor is established he can rely on EU Law.

2) Public policy, Public Security and Public Health (Article 45(3)) Article 45TFEU (3) 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health The list of derogations is exhaustive. Jany Case C-268/99 “EU law does not impose on MS a uniform scale of values as regard the assessment of conduct which may be considered to be contrary to public policy”. 1. Public security Article 27(2) CRD first paragraph provides us with the starting point for determining what constitutes public policy and public security. According to that “measures taken on the grounds of public policy must be based exclusively on the personal conduct of the individual concerned”.

Bonsignore, Case 67/74: “extraneous matters unrelated to the individual may not be taken into account. He was convicted of killing his brother by negligence when handling a pistol for which he had no license. A deportation order was issued against him for “general preventive nature”.

Bouchereau, Case 30/77: the public policy exception could be invoked to justify restrictions on the free movement of workers only if “there was a genuine and sufficiently serious threat affecting one of the fundamental interests of the society”.

9

Furthermore, the Court stated that a past criminal conviction could be taken into account only in so far as the circumstances which led to that conviction were evidence of: “personal conduct constituting a present threat to the requirements of public policy by showing a propensity to commit the similar acts again. This was a matter for the national court to decide”.

In Calfa, Case C-348/96, CJEU ruled that Calfa could be expelled for having committed a criminal offence provided that her personal conduct created a genuine and sufficiently serious threat affecting one of the fundamental interests of the society. The CJEU stated that the Greek law breached the directive because it did not take into account the personal conduct of the offender or the danger which she represented to the requirements of public policy.

This case law on personal conduct has been incorporated into Article 27(2) of CRD 2004/38: 2. 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 thems...