#14636 - Free Movement Of Persons - GDL EU Law

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Economic Movement

Art 45 TFEU

Abolition of any discrimination based on nationality in regards to:

• Employment

• Remuneration

• Other conditions of work & employment

Exemptions on grounds of:

• Public policy

• Public security

• Public health

• & employment in the public service

Effect of Art 45 TFEU

Treaty provisions are directly effective

Walrave

Sports regulating body issued a rule insisting ‘stayers’ in motorcycle racing were of the same nationality. Challenged as against EU law

Held: direct effect of Art 45 not only vertical – applies to any “rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services”

Bosman

Footballer transfer fees challenged on Art 45 grounds

Held: violation acknowledged; transfer must be free

Angonese

Bank required bilingualism certificate from Italy. Mr Angonese studied in Austria and asked that his degree certificate be taken as substitute but they refused

Held: a form of discrimination based on nationality. Horizontal direct effect was possible because Art 45 was “drafted in general terms and is not specifically addressed to the MS”

Scope

Art 45 is designed towards the movement of workers cross-borders, commuting or returning to the state of nationality

Boukhalfa

Belgian national in Algeria (non MS) working in German Embassy

Held: Art 45 triggered by sufficiently close link to Germany – he was under German legislation as employer

Definition of Worker

Levin

Chambermaid being paid less than minimum wage – could she qualify as a worker?

Held: wide definition of worker:

• Not a state definition, but a European definition in the interests of uniformity

• Free movement is a fundamental objective of the EU & therefore protection of it must be broad

• Art 45 covers part-time work

• The activity must, however, be genuine and effective, not marginal and ancillary

Lawrie-Blum

Qualifying teacher at a school paid less than qualified teacher

Held: 3 elements to comprise ‘genuine and effective’ employment activity:

1. Economic value

2. Must be under supervision of someone

3. Must be remuneration in return

Lehtonen

Emphasises the 2^nd criterion: “a person performs services for and under the direction of another person, in return for which he receives remuneration”

Interpreting the definition of a worker in the courts:

Bernini

Italian trainee in a Danish factory for ten weeks with low wages & few working hours

Held: could qualify as worker dependent on whether he spent enough hours to “familiarise” himself with the work – the court must look at all the circumstances to determine this question

Meeusen

Relative to the owner – could they be a worker?

Held: the fact-specific investigation of the court will not be limited by relation between employee & employer

Remuneration

Kempf

12 hrs work a week music teaching supplemented by benefits

Held: part time work counts & reliance on social security or other lawful subsistence irrelevant in the estimation of ‘genuine and effective work’

Steymann

Religious arrangement whereby plumbing was done in exchange for meals

Held: he could be a worker within the meaning of Art 45 as the “indirect quid pro quo for genuine and effective work” mapped onto the model

Marginal/Ancillary Activities

Raulin

60 hours work over course of 8 months on an on-call contract

Held: whilst this arrangement could be a worker within the meaning of Art 45 it required the court to investigate the irregular nature & limitation over the type of work

Thus in the context of occasional employment, the following may go against a claimant:

1. Irregularity of hours

2. Limited duration of services performed

Restrictive reasoning:

Bettray

Low remuneration for rehab with ex-drug addicts under the Social Employment Law, estimated at a 1/3 of normal worker output

Held: he did not come under Art 45 as this case introduced the principle that it should be within the “normal labour market” – focus on non-commerciality of the labour (including its adaptions to suit the worker)

• AG: “unusual circumstances” however acknowledged “substantial” activities

This has been criticised as Bettray did perform the essential characteristics of an employment relationship (work under supervision for remuneration) and 1/3 output correspondend with Steymann principle including part-time work

• Gareth Chalmers: critical as it appears to be a “foundation-free principle” but substantively it “exacerbate[s] the danger of disability discrimination”

Right to Equal Treatment

Art 7 Regs on freedom of movement for workers within the Union

Equal treatment with regards to:

• Remuneration

• Dismissal

• Reinstatement/employment after unemployment

• Social & tax advantages

• Vocational training

Nullifies discriminatory agreements in breach of this

Art 3: direct & indirect discrimination

Direct Discrimination

Levin

Wouldn’t issue residence permit

Held: free movement of workers entails the abolition of “any discrimination based on nationality”

Indirect Discrimination

Groener

Irish legislation requiring Gaelic fluency certificate. Applicant was German already teaching there

Held: indirect discrimination as it wasn’t the applicant’s nationality which was the determining factor. However there is a linguistic exception clause in Art 3(1) of the regs – the court held that the situation in Ireland is unique & that whilst it was not necessary to speak Gaelic for Mrs Groener’s post, it was not a disproportionate means of achieving a legitimate aim i.e. the promotion of Gaelic

Angonese

Italian Bank requiring certificate of bilingualism issued by local authority

Held: the restrictive nature of the local authority’s certificate (only they could issue it) meant that this was not a proportionate means of achieving the legitimate linguistic aim

Indistinctly Applicable Measures

Bosman (transfer fees)

Held: access to market language from free movement of goods applied to free movement of people: an indistinctly applicable measure

• “directly affect players’ access to the employment market...thus capable of impeding freedom of movement”

This was confirmed in Lehtonen

Olympique Lyonnais: rule to sign with the training football club or else face an action for damages deemed an indistinctly applicable measure preventing free movement as he would unlikely join another MS club

Kranemann

Germany’s traineeship scheme for lawyers provides for travel expenses within Germany but not in other countries

Held: deterrent to moving away from MS & therefore indistinctly applicable measure prejudicing free movement of workers

Measures beyond Art 45 TFEU

Graf

Compensation payment law triggered by termination by employer

Held: this was too uncertain to be considered discriminatory – it didn’t involve a choice or consequence flowing from the choice of the worker as so couldn’t discourage movement

Morson

Non-MS parents wishing to reside with Dutch children attempting to rely on Art 10 Regs

Held: there was no ‘movement’ here: they had never moved to Belgium to be economically active there

Justification of direct discrimination

Art 27 Directive 2004/38

• “These grounds shall not be invoked to serve economic ends” is an addition

• Criminal convictions do not in themselves constitute grounds for taking such measures

Bonsignore

Held: general preventative measures are not enough to accede to the public policy ground

• Public policy ground “presupposes...a genuine and sufficiently serious threat affecting one of the fundamental interests of society”

Van Duyn

Scientology as public policy personal conduct

Held: directly effective directive however her conduct was personal & justified on grounds of public policy. Whilst scientology was not illegal, CoJ noted the area of discretion given to national courts in domestic public policy

• Something “socially harmful” but not illegal may accede to public policy ground

NB: first prelim ref after accession; CoJ treading carefully

Adoui and Cornuaille

Prostitution as socially harmful but legal in Belgium (though incidental activities criminalised)

Held: there must be evidence of repressive measures against MS’s own citizens if it is to be proven a successful public policy ground

Public Service Exception

Commission v Belgium

Belgium’s blanket exclusion to free movement for public sector including nurses & unskilled railway workers

Held: the public service exception is applicable to posts which evidence a “special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality” – the blanket exclusion did not fulfil the MS’s obligations under Art 45 TFEU

Justification of Indistinctly Applicable Measures

Groener’s proportionate means of achieving a legitimate aim:

• Language expresses Irish culture

• & education as a vehicle for language = legitimate

• If the level of knowledge required was proportionate to the role’s demands

• & certificate didn’t have to come from Ireland = proportionate

Kranemann: when it comes to indistinctly applicable measures, a non economic aim will be ok if it is legitimate (& compatible with Treaty) & proportionate

• “aims of a purely economic nature cannot constitute pressing reasons of public interest justifying a restriction of a fundamental freedom”

Non-Economic Movement

EU Citizenship

Art 18 TFEU: principle of non-discrimination

Citizenship:

• Referred to for the first time at Maastricht

• Introduced in Art 20 TFEU giving the right to “move and reside freely within the territory of the MS” in...