#5766 - Free Movement Of Workers - GDL EU Law

Article 7A SEA 1986: aimed for elimination of all border controls – opposition from UK/Ireland

To whom does ‘free movement’ apply?

• Directive 2004/38 came into force 2006: right to move to all EU Citizens – workers/self-employ/retired/students

• 1992: concept of citizenship introduced by Maastricht revision of EC Treaty: A17 – now A20 TFEU

A21(1) TFEU: ‘Every citizen of the Union should have the right to move freely’

• Directive 2004/38: shift from economic to social: restricts MS ability to refuse citizenship

Free movement of workers

• One of the 4 essential freedoms on the EU internal market – A3(2) TOTEU

• A26 TFEU – internal market = area w/o internal frontiers – free movement of goods, persons etc.

• A18 –principle of non-discrimination on the basis of nationality

A45 TFEU: Key Provision relating to workers

Key Secondary Legislation

1. Regulation 492/2011: right of equal treatment, residence and specific rights enjoyed by workers/family – consolidated and replaced by regulation 1612/68 + 2 others

2. Directive 2004/38: rights of entry/residence – applies to all individuals holding MS nationality

3. Directive 2005/26 – recognition of professional qualifications – streamlined 15 directives

Definition of a “worker”

• Remain longer than 3 months – must show not economic burden (economically active/sufficient resources)

• Worker: No definition in EC treaty – CJ – will be defined by national law but given a union meaning

• Hoekstra (nee Unger) v Besturr der Bedrifsvereniging – CJ held it had ultimate authority to define worker

An employment relationship: Lawrie-Blum – 3 essential characteristics: trainee teacher fulfilled all 3

1. Perform services

2. For and under direction of another, and

3. In return for remuneration

An effective and genuine activity – excludes marginal contributions – Levin v Staatssecretaris van Justitie : part time

• Kempf v Staatssecretaris van Justitie: economic activity cannot be excluded even if insufficient to meet needs

What constitutes economic activity?

Lawrie Blum: providing services – trainee teacher

Walgrave & Koch – pacer in cycling race

Union Royal Belge des Societes de Football Association ASBL v Jean Marc Bosman: professional sports counts

• Steymann v Staatssecretaris: member of religious community – plumbing etc. = genuine economic activity

• Bettray v Staatsecretaris van Justitie: compulsory drug rehabilitation – work was not genuine economic activity

Job Seekers: A45 only refers to those who have secured work – but CJ has extended this to those seeking work

• Procurereur du Roi v Royer: job seekers granted rights of entry/residence for a period before lawful deportation

• R v Immigration Tribunal, ex parte Antoissen: CJ held that a person is entitled to remain beyond and period stipulated in national legislation if able to show they are economically active, making a genuine effort to find or work or had realistic prospect of obtaining it

Unlike workers - JS have no entitlement to social benefits pending commencement of work: Antonissen confirmed limitations on benefits for those unable to find work

• Regulation 1408/71 and 2001/83 – payment of unemployment benefits for up to 3 months but not after this

• Regulation 492/2011: JS not able to claim other benefits available to a person with a job

• Collins v Secretary of State for Work and Pensions: right to restrict social benefits granted to host JS

What can workers bring with them? Definition of family members in D2004/38 – A2(2)

• Extension to include registered partners and partner’s descendents and ascendants : taking into account Reed – but only a handful of MS recognise registered partnerships – only acquire rights which are granted in home/host

• “beneficiaries” under A3: includes members outside A2(2) who are dependants/members of the household/whose health problems require care of such a person or the partner with whom EU citizen has ‘durable relationship, duly attested’

• “Dependant” in Jia v Migrationiverket – in need of ‘material support in order to meet their essential needs’

• Reed: Cohabitees/un-married partners – A7(2) because Dutch law allowed nationals to live with non-national, non-martial partners

Divorce/Separation

• Rights remain unaffected – Diatta v land Berlin – Senegalese national + French spouse in Germany

• But contrast with R v Secretary for State, ex parte Sandhu: Indian national married German living in UK – Sandhu no longer a qualifying spouse under EU law

• Directive 2004/38 – detailed provisions:

  • A13(1) divorce/separation won’t affect residence if national of antother MS - won’t be stopped from acquiring residence after 5 years (as long as 7(1) economic independence)

  • A13(2) third country nationals allowed retention if 4 circumstances – A13(a)-(d) : 1)3 year marriage/partnership 2)agreed/court ordered custody of EU citizens’ children 3) termination due to difficult circumstances 4)court ordered access to a minor in the host state

Rights of entry/residence

• Kaczmarek v Secretary of State for Work and Pensions: even lawfully present person can be denied if burden

Workers/families have following rights:

1. Leave home MS and enter host MS with production of passport/identity card (host state must provide visa)

2. EU citizens and their families may reside for 3 months without any conditions (A6)

3. A7: don’t need to obtain permit to stay longer than 3 months – registration with competent authorities

4. Residence card is not authorization: document recording pre-existing right (Procureur du Roi v Royer)

Watson and Belmann: EU law cannot prevent MS from monitoring number of non-nationals/obligation to report

5. Chapter IV (A16-18) of Directive 2004/28 – the right to permanent residence – if have resided continuously for 5 years and not subject to conditions in Chapter III: can only be lost through absence of 2 consecutive yr

Rights of a worker once installed in MS

Non-discrimination on the basis of nationality: A18 TFEU prohibits discrimination on basis of nationality

• A24(1) of Directive 2003/38: general principle of right to equal treatment with nationals – subject to specific provisions provided for in Treaty + secondary legislation – Belgium v Taghavi

Regulation 492/2011:specific areas in which workers must be treated equally – outlaws direct/indirect discrimination

Direct discrimination: Commission v France (Merchant Seamen) – 3 French to one national

Indirect discrimination:

• Wirrtembergische Milchverwertung v Salvatore Ugliola: Italian who had performed military service in Italu working in Germany – no justification for seniority granted to Germans who had done military service

• Groener v Ministry for Education: Irish allowed to discrimination for linguistic reasons – proportionate

Non-Discriminatory rules: The Bosman Ruling

• Seminal ruling: Horizontal effect of A45 – applies to private bodies – Bosman = Belgian footballer – club wouldn’t release him w/o payment of transfer fee (standard rule) – CJ held it had direct effect on players’ ‘access to the employment market in other MS’ – alteration of FA rules

• Kraus v Land Baden-Wurttemberg – Germany student – LLM from Edinburgh – needed permission from Germany to begin work as a lawyer in Germany – CJ held that this acted as a barrier to moving to other MSs

Social/Tax Advantages: Article 7(2) of Regulation 492/2011 – same ‘social and tax advantages’

Social Advanatage: Ministere Public v Even - ‘those which are generally granted to workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory’

• Cristini v SNFC – ‘all social and tax advantages’

• Includes: Special fare reduction on railways to families (Cristini), Discretionary childcare loans (Reina), Min income allowance (Hoeckx), Right to allow a foreign partner to install themselves where the national law allows such a right to its own nationals (Reed), future expenses benefits (O’Flynn) – BUT: Benefit claims can be refused to those economically inactive and incapable of self-support (Kaczmarkek v SS for Work and Pensions)

Education for workers and their families

• Regulation 492/2011 – right to equal access to certain kinds of training in vocational schools and retraining centres (Article 7(3)) and broader rights to education for family (Article 10)

• Scope of A7(3) – quite limited : Brown v Secretary of State for Scotland: Universities not vocational schools: must ‘provide instruction interposed btw periods of employment or else closely connected with employment’ – but – this is now largely avoided by A7(2) where access to education is seen as ‘social advantage’

• Article 10 – wide interpretation – ‘any form of education’ – Echternach and Moritz

• Covers grants – Casagrande – ‘any general measures intended to facilitation educational attendance’ – but child of a national of one MS who resides in another can only claim the benefit if parent no longer resides in HS

Awards of grants for workers’ education - ‘quasi worker’ – A7 of the regulation: Lair and Brown – fall under A7(2) not A7(3) – social advantages – but 2 limitations: must show link btw previous employment and later studies (Lair) , and work that is obtained solely as a means of taking up later studies does not qualify a worker under A7(2) (Brown)

• Creation of a quasi-worker who has a right of residence but not full range of benefits under A7(2)

• BUT – 2 decision were before concept of EU citizenship: recent cases suggest equal treatment under A18 TFEU in all fields covered by the treaties – Maria Martinez Sala and applied in Grzelczyk – allowed French student to claim payment of minimex...