#15635 - Free Movement Of Persons - European Law

FREE MOVEMENT OF PERSONS

FREE MOVEMENT OF WORKERS

This is one of the four fundamental freedoms under EU law. There are two ways of seeing the free movement of workers (FMW):

• Economic dimension: the FMW ensures the optimal allocation of labour resources in the EU since workers can move to areas where they are most valued (e.g. unemployed Italians who cannot get work in Italy can go to Germany to fill a labour supply shortage). This view sees workers as discrete mobile units of production that contribute to the EU’s prosperity

• Social dimension: this is the broader notion of EU solidarity and the integration of different nationalities within a European community —this view sees workers as human beings who exercise a personal right to live in another country and enjoy equality of treatment for themselves and their families.

The FMW creates sovereignty issues —free movement means porous borders. This can become especially problematic if an EU citizen has non-European family members.

NB: there must be a cross border element otherwise EU law does now apply.

LEGISLATIVE PROVISIONS

Art 45 TFEU

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:

1. to accept offers of employment actually made;

2. to move freely within the territory of Member States for this purpose;

3. 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;

4. 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.

This article is directly effective against: (i) Member States; (ii) Private organisations which regulate gainful employment in a collective manner; (iii) individual employers (Walgrave v Koch).

Art.45 arguably represents a specific application to the context of workers of the broader principle of non discrimination on the grounds of nationality contained in Art. 18.

Art 18 TFEU

1. 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.

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.

SECONDARY LEGISLATION

Art. 46 TFEU: provides for the EP and Council to adopt secondary legislation to bring into effect the freedom provided for in Art. 45.

This has been used to produce the following:

• Directive 2004/38: on free movement and residence of EU citizens and their families. This consolidated previous secondary legislation and introduced right of permanent residence for EU nationals and their families after 5 years of continuous legal residence in another MS

• Regulation 1612/68: fleshed out equal-treatment principle. Now amended by the Directive above.

WHO IS A WORKER?

This is a significant definition —to obtain the full right attached to the principle of free movement an individual once had to be a worker. However, the basis of free movement has since changed to EU citizenship. Nevertheless, if a citizen wishes to remain in a host MS for more than three months, they must demonstrate that they will not be an economic burden —i.e. they have to either have sufficient resources or be economically active.

Union definition: the Treaty does not define workers; in Hoekstra the ECJ held that the meaning or ‘worker’ was a matter for the EU to define, not the MS —this ensures that MS cannot modify the concept to get around Art. 45 protections.

Minimum income and working time requirements

The key to defining a ‘worker’ is “effective and genuine” economic activity —a principle developed in the following case:

Case 53/81 Levin [1982] ECR 1035

Facts: Mrs L was a British national married to a SA national. She was refused a residence permit by Dutch authorities because she was not in gainful employment. She challenged the refusal in the Dutch courts, arguing she had sufficient income for her and her husband’s maintenance, and she had taken up part-time employment as a chambermaid. The Dutch courts asked the ECJ to explain the notion of ‘worker’. Of particular concern was the need to elucidate scope of Art 45 TFEU where individual earns an income below the minimum required for subsistence as defined under national law.

ECJ: the only requirement is that the worker wishes to pursue effective and genuine economic activity, regardless of their motive, how much they earn, or whether the work is part-time.

• 13-14: reaffirms that the rules on free movement of persons are fundamental to EU and must therefore be interpreted broadly

• 15: the freedom to take up employment is important not only as a mean towards the creation of a single market, but also raising the living standards of individuals.

• 17: The rules apply only to “effective and genuine” economic activity. The rules do not apply to “activities on such a small scale as to be regarded as purely marginal and ancillary.”

• 18: “The provisions of Community law relating to freedom of movement for workers also cover a national of a MS who pursues, within the territory of another MS, an activity as an employed person which yields an income lower than that which, in the latter state, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum, provided that he pursues an activity as an employed person which is effective and genuine.”

• 22. Once an individual establishes that they wish to pursue an effective and genuine activity as an employed person “the motives which may have prompted the worker to seek employment in the MS concerned are of no account and must not be taken into consideration.”

Following Levin, motive and ammount of payment are irrelevant. Further, payment need not be monetary, but can be a benefit in kind (Case 196/87 Steymann) and someone who does not earn enough to live on and so also claims benefits is still a worker (Case 139/85 Kempf).

An ‘employment relationship’

There are tree essential features to an employment relationship: (i) an individual performs services; (ii) for and under the direction of another; (iii) for remuneration.

Case 66/85 Lawrie-Blum [1986] ECR 2121

Facts: The applicant was a UK national who went to University of Freiburg to train as a teacher. The German authorities claimed she was not a worker because, although she was paid for a few hours teaching each week, she was in reality training. Issue: was a trainee teacher participating in the preparatory stage a worker under Art 45?

ECJ held that a trainee teacher was a worker for the purposes of EU law as she would fulfil the three requirements above during the course of her training.

• 17: “The essential feature of an employment relationship... is that for a certain period of time a person performs services for an under the direction of another person in return for which he received remuneration.”

• 20: It cannot “be objected that services performed in education do not fall within the scope of the... Treay because they are not of an economic nature. All that is required for the application of [the Article] is that the activity should be in the nature of work performed for remuneration, irrespective of the sphere in which it is carried out.”

• 21: Also irrelevant that “trainee teacher give lessons for only a few hours a week and are paid remuneration below the starting salary of a qualified teacher” since Levin held that workers category includes those who receive lower pay than full-time employees, providing the activity is effective and genuine.

Job Seekers

On its fact, Art. 45 applies only to those who have already secured work in another MS, having the right to move there to take up the work. The ECJ, however, have applied the provision liberally via purposive interpretation to cover job-seekers too. The rights of job seekers are less extensive since they can be removed if they fail to find work within a reasonable period of time.

NB: Directive 2004/38 allows EU nationals to remain in any MS for up to three months without having to conform to the definition of a ‘worker’.

Case 292/89 Antonissen [1991] ECR I-745

Facts: A Belgian sought to rely on Art 45 to defeat a UK deportation order against him. He had been seeking employment in the UK for over 6 months and the tribunal’s view was that he had no rights under the Treaty.

ECJ:

• 12: If interpreted strictly to exclude job seekers the Article “would jeopardise the actual chances that a national of a MS who is seeking employment will find it in another MS, and would, as a result, make that provision ineffective.”

• 13: Art 45 “must be interpreted as enumerating, in a non-exhaustive way, certain rights benefiting nationals of MS in the context of the free movement of workers and that that freedom also entails the right for nationals of MS to move freely within the territory of the other MS...