Week 16 - Free Movement of Persons PDF

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Summary

Week 16 - Free Movement of PersonsIntro- Difference from Schengen Area - Scope of free movement of persons - Free Movement of Workers o Definition of worker o Material scope of Article 45 TFEU o Justifications for restrictions - General assessmentDifference with the Schengen Area- Abolishes internal...

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Week 16 - Free Movement of Persons Intro -

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Difference from Schengen Area Scope of free movement of persons Free Movement of Workers o Definition of worker o Material scope of Article 45 TFEU o Justifications for restrictions General assessment

Difference with the Schengen Area -

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Abolishes internal border checks o Article 26(2) TFEU: “comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. Some MS are part of this area and some are not Once a person crosses the border, they are able to practice rights Moving freely without having checks at the border o Despite this it does not have direct effect (Wijsenbeek case) o Nevertheless it has been a foundation of other articles both primary and secondary

Free movement of persons -

one of the four freedoms of single market Originally inspired by economic rationale o Whereby workers are able to move freely and find jobs o Useful for countries who need workforce; are provided for

Free movement of persons: classification

Employed: dependent on labour force Services (Art. 56): companies who have posted workers, come to work in groups

Free movement of workers: Legal sources -

Primary Law: Workers in Article 45 TFEU o ‘1. Freedom of movement for workers shall be secured within the Union. o 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.’

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 States twin principles; free movement of workers & non-discrimination on the grounds of nationality Secondary Legislation o Directive 2004/38/EC on the right of citizens of the Union and their family members to move freely within the territory of the Member States (Citizenship Directive)  Provides the permanent right of citizens o Regulation 492/2011 on freedom of movement for workers within the Union

Definition of ‘worker’ -

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Case 75/63 Hoekstra o Member states to formulate their own definition of ‘worker’ o “each member state to modify the meaning of the concept of 'migrant worker' and to eliminate at will the protection afforded by the treaty to certain categories of person” Broad definition given in Lawrie-Blum o Here a teacher applied for a practical training course but got rejected as she would then be considered a ‘civil servant’ o Only Germans can be civil servants o Appealed on the grounds of discrimination o Court looked at the period of time she performed the service o Service itself needs to be an  Employment relationship  Subordination & Remuneration (money paid for service or work)

The term worker ‘must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. 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.’ What is remuneration? -

Different levels to this Part time work 

Levin case In order to be regarded as a worker, a person must perform ‘effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary’ -

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Here c applied for resident permit claiming she is a worker She was rejected on the basis that her work made an impact which was on too small of a scale o Regarded as “purely marginal and ancillary” o Must perform effective and genuine activities The court looked at the citizen themselves for the first time Tried to accommodate both sides however not all MS can be similarly generous

if a person claims social assistance from public funds  … Kempf

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MSs cannot exclude part-time employee from the status of worker under EU law, - Use of social benefits is irrelevant for the definition of worker BUT - MSs can address the concerns about benefit tourism by limiting workers’ access to certain kinds of social assistance

In this case the C had moved to Netherlands and worked as a music teacher on a 12-hour contract -

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They had also got extra services, so when applying for permanent residency they got rejected on the basis he was earning minimum wage and using services issued by public funds Courts disagreed as he teaches, and it therefore benefits his quality of life as well providing a service to them o Netherlands themselves can limit social services but not limit his work abilities

Forms of remuneration -

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Does the form actually matter? Sheltered employment; not being paid in conventional terms = still  remuneration Steymann: his application for residency was denied as he was not working for actual money o However he was being paid in other economical value as another person would do his job but for actual money Trojani: he was put into a programme, so he stays away from drugs and crime o He applies for social assistance and is accepted but gets denied residence o Court held there was value in what he was doing as it benefited his quality of life Overall: its clear remuneration need not be FINANCIAL

Purpose of the Employment -

General rule: purpose generally does not matter Levin: sought work in order to obtain a residence permit to remain in the country o As long as it contributes to their life in a meaningful way, the purpose is not relevant

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Case Bettray - rehabilitation/reintegration o Not a worker; work is merely a means of rehabilitation or reintegration; financed from public funds and created by local authorities without an economic need Difference from Case Trojani - reintegration Worker; o paid activity was real and genuine; services provided formed part of normal labour market

Can job seekers rely under Article 45 TFEU? -

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YES Antonissen: in this case they could not find a job so started selling drugs. When caught they were threatened with deportation o They were still allowed to remain as it could jeopardize them finding a job in the future But their status is not entirely the same as workers o MSs retain the power to expel a job-seeker after a certain period of time, if no genuine chances of finding a job exist

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MSs can limit the access of job seekers to social benefits (Case-138/02 Collins)

But their status is not entirely the same as workers -

After 6 months if he still has the means to find a job = won’t be deported Collins: came to the UK to find a job and was entitled to social benefits

Material scope of Article 45 1. Direct discrimination on grounds of nationality o E.g. Case 167/73 Commission v French Republic Requirement of a certain proportion of a French-flagged ship’s crew to be of French nationality constitutes direct discrimination 2. Indirect discrimination E.g. Case C-281/98 Angonese: Requirement to provide a bilingualism certificate constitutes indirect discrimination 3. Obstacles to have access to the employment market o Bosman case: 3 + 2 rule -> allows three foreign players + two players who had played in the host country for five years to be fielded -> direct discrimination o transfer fee -> indistinctly applicable measures, yet effects player’s access to the employment market of another Member State ->obstacle to the market access o

Justifications -

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Direct discrimination: o Treaty Derogations: Article 45 (3) o Public policy must be interpreted strictly Indirect discrimination o Treaty Derogations: Article 45 (3) o Public Interest Market access limitation o Treaty Derogations: Article 45 (3) o Public Interest

Objective justifications: public policy and public security -

Personal conduct of the individual concerned(Case 41/74 Van Duyn) A genuine, present, sufficiently serious threat effecting one of the fundamental interests of society – o (Case C-482 and 493/01 Orfanopoulosand Oliveri): Threat should exist at the time of the enforcement of expulsion orders o (Case 348/96 Calfa) Previous criminal convictions cannot automatically constitute evidence to invoke public policy-> may not indicate that there is a present threat o (Cases 115 and 116/81 Adouiand Cornuaille): The conduct does not need to be criminalized, but it can be necessary for the MSs to take repressive measures to invoke public policy-> no serious threat exists

Justifications: Public health -

Citizenship Directive Art. 29

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Only in relation to diseases with epidemic potential Can be applied in the entry or within three months of arrival MS may require a person to undergo (free) medical examinations, where there are serious indications of an epidemic potential

Justifications: Public Interest -

Non-exhaustive broad list E.g. – o encouraging the recruitment and training of young players (Case C325/08 Olympique) o ensuring an adequate supply of housing & maintaining the financial balance of the social security system (Case C-269/07 Commission v Germany) o Purely economic reasons cannot be used (Case 137/04 Rockler)

Public service exception -

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Article 45 (4) TFEU ‘The provisions of this Article shall not apply to employment in the public service.’ A European concept: The European Court alone defines the scope of the exception; the term ‘public service’ o Case 152/73 Sotgiu ‘[The] legal designations can be varied at the whim of national legislatures and cannot therefore provide a criterion for interpretation appropriate to the requirements of community law.’ Narrow interpretation o E.g. Case 66/85 Lawrie Blum Public servant exemption is to be construed narrowly, and only to safeguard a state’s interests. Conditions: Case 149/79 Commission v Belgium o exercise of powers conferred by public law o safeguarding of the general interests of the state Case law indicates-> mainly supervisory and managerial positions fall within the scope of this exception

Proportionality -

Restrictive measures are subject to the proportionality test o E.g. Case 118/75 Watson expulsion for non-compliance with administrative formalities is disproportionate

A sensitive political matter -

Argument over people abusing social benefits and services is not a convincing argument under EU’s free movement of people...