Free Movement of Workers

Introduction

Freedom of movement of workers is a cornerstone and one of the main achievements of European Integration 

Embedded within the Internal Market 

Equal Treatment, non-discrimination is the central idea 

Intra-EU mobility of workers is relatively low 

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Free Movement of Persons

Art 49 TFEU - free movement rights to be self-employed

Art 56 TFEU - freedom to provide services 

Art 21 TFEU - non-economic right of movement/residence for union citizens 

Art 26(2) TFEU - 'area without internal frontiers in which the free movement of goods, persons, services and capital is ensured' 

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Art 45 TFEU

1. Freedom of movement for workers shall be secured within the Union 

2. Abolition of any discrimination based on nationality...regards employment, remuneration and other conditions of work and employment... entitled to the same treatment 

3. The right, subject to justified limitations of public policy, public security or public health

a) to accept offers of employment actually made - b) to move free for this purpose - c) to stay in the member state for the purpose according to provisions laid down by national law - d) to remain after being employed subject to conditions

4. does not apply to jobs in the public service 

Art has vertical direct effect (against the state) - Commission v France. Quasi-horizontal direct effect (applied against an organisation that wasn't part of the state or a private one) - Walrave and Koch. Full horizontal direct effect - Angonse - 'must be regrded as applying to private persons aswell'. Free movement of workers is a fundamental freedom, must be interpreted broadly so as many people as possible can benfit 

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Secondary Legislation

Art 45 is supplemented by secondary EU legislation

Directive 2004/38 (Citizens freemovement rights)

Regulation 492/2011 (free movement of workers)

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Intra-EU movement

Intra-EU factor is required to activate Treaty rules on workers:

- Cross border movement for employment and residency 

- Cross border movement for employment only

- Previous cross border movement for employment and residency 

Previous - Kraus: returned to home state after completeing work in the UK, he could rely on his previous cross-border movement 'treaty may not be interpreted in such a way to exclude from the benefit of community law' 

Art 45 excludes purely hypothetical scenarios - Moser, teacher training case

Also excludes wholly internal situations - Saunders 

Art45 applies to all employment relationships that take effect within the territory of the Union - Boukhalfa

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Who is a worker?

Workers continue to enjoy greater rights than non-economic citizens e.g. unconditonal right of residency and rights to social and walefare benefits 

Art 45 does not define the term worker - CJEU has hel that it must be defined by Union, not national law - Hoekstra

The court has adopted a broad definition of a 'worker' - 'may not be interpreted restrictively' Levin 

Basic test in Lawrie-Blum - essentail feature of employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for remuneration

1. Performs services for and under the direction of another person - not a self-employed person Asscher 

2. In return for remuneration - a generous interpretation Steymann - contributed maintenance services for accomodation, food, pocket money

Bettray - 'activities carried out... a mere means of rehabilitation... cannot be regarded' 

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Excluded activities

Lawrie-Blum exludes activities that are not effective and genuine - Trojani

Part time work is generally not excluded from defintion:

Even if wages fall below legal minimum wage - Levin

Even if claimant must in turn supplement his income - Kempf 

Even if the number of hours is relatively small - Raulin 

Art 45 benefits employers as well as employees - Car Auto Service 

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Generous Interpretation of Worker

Kurz - the nature of the employment relationship, the level of productivity, the origin of funds or the amount of remuneration do not have effecr on the worker status 

Vatsouras - the limted amount of remuneration and the short duration of professional activity cannot rule out progessional activity as work

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Work Seekers - Rights before employment

Right to move/reside for the purposes of seeking employment 

Royer - 'to enter the territory of another member state and reside there to look for or persue an occupation. 

Antonissen - work seeker had not found work after 6 months. 'may be required to leave the state if he has not found employment after 6 months, unless the person provided evidence that he is continuing to seek employment and he has genuine chances of being engaged' 

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Work Seekers - Directive 2004/38

Codifies the case law on work seekers 

Art 6 grants a general and unconditional right to reside in the territory for up to 3 months 

Art 14(4b) grants a continuing right of residency for the purposes of seeking employment as long as they can provide evidence they are continuing to seek employment and have a genuine chance of being engaged (Antonissen test)

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Work Seekers - Scope of Rights

Work seekers do not enjoy the same rights to equal treatment as 'workers' 

Workers enjoy a powerful rights to equal treatment with member state nationals in regards to social and tax advantages - Art 7 Reg 492/2011

Work seekers only enjoy the right to equal treatment for access to employment - Lebon

Art 24(2) Dir 2004/38 codified this idea - 'the host emmeber state shall not be obliged to confer entitlement to social assistance during the first three months... nor to grant aid for studies... to persons other than workers' 

Collins - refusal to grant jobseekers allowance was indirectly discriminatory, however this could be justified by requiring the work seeker to demonstrate a real and genuine link to the territory - the link can be determined if the person has genuinely sought work in the state for a reasonable period of time 

Job seekers allowance was clarified in Vatsouras - such benefits are not social assistance within the meaning of 24(2) Dir 2004/38 - financial benenifts intended to facilitate access to the labuor market cannot be regarded as social assistance 

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Retention of Worker Status: Art 7(3) Dir 2004/38

A citizen who is no longer a worker shall retain the status of worker if 

1) He is temporarily unable to work as the result of an illness or accident 

2) Involuntarily unemployed after being employed for over a year and has registered as a jobseeker

3) Involuntarily unemployed after completing a contract of employment for less than a year or become involuntarily unemployed during the first year and registered as a jobseeker, status will be retained for no less than 6 months 

4) He embarks on vocational training. Unless he is involuntarily unemployed the training will need to be related to the previous employment to retain the status

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Does Art 7(3) encompass pregnancy related breaks?

Does not expressly mention breaks in pregnancy due to pregnancy and child birth 

Jessy Saint Prix - 'a woman who gives up work or seeking work because of the late stages of pregananct or the after math of child birth, retains the status of worker provided she returns to work or finds another jobs within a reasonable period' 

Alimanovic - worked for 11 months but not within the previous year, been unemployed for longer than six months specified in Art 7 (3c). Status reverted to work seeker 

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Permanent Residency and Retirement

PR - Art 16 Dir 2004/38 

Union citizens who have resided for five years in the host state shall have the right to permanent residence. This shall only be lost through absence form the host state for a period exceeding 2 years 

Retirement - Art 17 Dir 2004/38 

Right of permanent residency can be acquired before the 5 years through retirement. At the time they stop working have reached the retirement age laid dowm by the MS laws. Or early retirement if they have been working for the last 12 months and resided in the MS for more than 3 years 

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Rights of Migrant Workers

The right to entry - Art 45 confers on workers directly a right to entry into host member state - Royer 

Right to reside cannot be made conditional upon additional documents - Commission v Belgium

MS retain the right to carry out document/identity checks and impose fines for non-compliance

Wisjsenbeek - refused to present passport at border. The treaty did not preclude a MS from requiring a person to establish their identity. 

Member states can impose non-discriminatory and proportionate sanctions on individuals for non compliance 

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The Right to entry

Dir 2004/38

Right to leave home state Art 4

Right to enter host state with valid passport/identity card Art 5

Right of residency for 'workers' Art 7(1)

Workers may be required to registered with national authorities within a reasonable period of time Art 8 

MS must issue permanent residents with residency certificates Art 19 

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Equal Treatment in Employment

Art 45 (2) TFEU - 'abolition of any discrimination based on nationality between workers of the MS' 

Reg 492/2011

Art 1-6: equal treatment to access to employment 

Art 7-9: equal treatment to social/tax advantages; trades unions; social housing 

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Direct Discrimination

Difference in treatment based on nationality of worker - Commission v France 

Justifying direct discrimination? 

Art 45 (3) TFEU - right to free movement is subject to limitations justified on grounds of public policy, public security or public health 

Commission v Spain - allow member states to refuse access to their territory to persons whose access would constitute a danger to public policy, security or health 

Commission v Italy - compellign attempts to invoke Art 45 (3) may succeed

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Art 45 (4) free movement does not apply to the pub

Commission v Belgium - defines public service as: exercise of powers conferred by public law and duties desgined to safeguard the general interests of the state

Why? 

Such posts presume the existence of a special relationship of allegiance to the state existing from nationality 

Bleis - secondary school teachers are not public service 

Commission v France - Nurses in hospitals not public service 

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Indirect Discrimination

Art 45 (2) also prohibits indirect discriminaiton - measures applied regardless of naitonality but have a disadvantage effect on non-nationals, impose requirements that are more easily somplied with by nationals

Ugliola - states cannot derogate from equal treatment

Objective justifications - Objective reasons independent of nationality

Legitimate aim of the measure: aim compatible with the treaty

Proportionality: sufficient and necessary to achieve its aim 

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Discrimination in regards to social/tax advantages

Art 7 (2) Reg 492/2011 - migrant workers shall enjoy the same social and tax advantages as national workers 

Definition of social advantages in Even - whether or not linked to a contract of employment, are generally granted to national workers because of their status as workers or because of their residence on national territory... suitable to facilitate their mobility within the union 

  • Child benefits - Martinez Sala 
  • Childbirth loans - Reina 
  • Payment to agricultural workers whose contracts are terminated - Meints 
  • Travel benefits - Fiorini 
  • Funeral benefits - O'Flynn 

Aim not only to 'facilitate mobility' but to foster integration - Hartmann v Freistatt

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Non-discriminatory Obstacles

Terhoeve - provisions which preclude a national of a MS from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply regardless of nationality

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Rights of Workers Family Members

EU law grants famly members of workers the right of entry and residence, equal treatment and right to remain after death, departure or divorce. 

Why? 

To facilitate integration of the worker into host member state 

Freedom of movement constitutes a fundamental right of workers and their families 

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Who qualifies as a family member?

Art 2 Dir 2004/38 

Spouse (also the partern who has a contracted registered partnership if the legislation of the member state treats registered partnerships as equivalent to marriage)

Direct descendants who are under the age of 21 or are dependents of the spouse or partner 

The dependent direct relatives in the ascending line of the spouse or partner

Art 3 Dir 2004/38 - additonal category of beneficiaries who have a right os entry and residency 

  • family members who are dependent on members of the household
  • the partner with whom the union citizen has a durable relationship
  • the host member state shall undertake an extensive examination
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What Rights do family members enjoy?

  • Art 5 Dir 2004/38 - entry 
  • Art 7(2) Dir 2004/38 - residency 
  • Art 24(1) Dir 2004/38 - equal treatment 
  • Art 7(2) Ref 492/2011 - social and tax advantages 
  • Art 10 Reg 492/2011 - education 
  • Art 23 Dir 2004/38 - employmennt
  • Art 12 Dir 2004/38 - residency following workers death/departure 
  • Art 13 Dir 2004/38 - residency following divorce from worker 
  • Art 17(4) Dir 2004/38 permanent residency after work related death
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Right to Equal Treatment in host MS

Art 24(1) Dir 2004/38 - 'enjoy equal treatment... extended to family members' 

Art 10 Reg 492/2011 Education - the children of a national... shall be admitted to that states general education... under the same conditions as the nationals of that state' 

Art 23 Dir 2004/38 Employment/self-employemnt - the family members... shall be entitled to take up employment or self-employment 

Right to education - right to continue or complete education - Baumbast 

Right of residency for primary carer of student completing education - Baumbast - Art 12(3) Reg

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Right to Remain after change in circumstances

Art 12 Dir - residency following death/departure: minimum 1 year prior residency in host MS for non-EU family members. Permanent residency asfter 5 years 

Art 17 (4) Dir - resident family members aquire permanent residency if worker dies from a work related illness

Art 13 Dir - divorce: no effect on residency if:

  • Min 3 years marriage including 1 year in MS or 
  • Claimant has custody of workers children or
  • Claimant has access to minor children the court has ruled this must happen in the MS 
  • Special circumstances such as domestic violence 
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Public policy, security and health derogation's

Art 45 provides restrictions to free movement and residence on grounds of public policy, security or health.

Orfanopoulos - case by case basis, respect for fundamental rights 

Adoui - MS must be consistent 

Bouchereu - only invoked if there is a genuine and sufficently serious threat affecting the fundamental interests of society 

Must also be proportionate 

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