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Session 4: Free movement of people

Contents

Free movement of goods is all very well…

Free movement of goods is all very well…

But what about people?

Who can move freely and for what purpose?

And what rights do they have?

Notes

Carrera, S. (2005) European Law Journal, vol.11, 6, pp.699-721. See also vol. 13, 5, (2007) for a Special issue on European Citizenship.


And so we move to the…

And so we move to the…

eye of the storm…

with headlines galore in UK media

about immigrants from other EU member states.

But are they immigrants?

or European citizens exercising the freedom of movement?


But since we are lucky enough

But since we are lucky enough

Not to have to fight an election…

Let us examine EU law & policy on the free movement of people and consider its implications with a focus on the UK


So, what does the Treaty say about the free movement of people?

So, what does the Treaty say about the free movement of people?

Preamble DETERMINED to lay the foundations of an ever closer union among the peoples of Europe.

The internal market shall 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 (Art.26 TFEU).

TITLE IV

FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL

CHAPTER 1

WORKERS

Article 45


Free movement of workers

Free movement of workers

Fundamental principle of the European Union Treaty since 1957.

We will now look at the exact wording in the Treaty and then analyse it in detail.


Article 45 TFEU WORKERS

Article 45 TFEU WORKERS

  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 implementing regulations to be drawn up by the Commission.
  4. The provisions of this article shall not apply to employment in the public service.

Now, let’s take it apart!


free movement of workers what rights? what restrictions? Treaty articles, secondary legislation & case-law

free movement of workers what rights? what restrictions? Treaty articles, secondary legislation & case-law

Non-discrimination

Direct effect

Who is a worker?

Reverse discrimination

Work-seeker

Workers’ family

Exercise of workers’ rights

Loss of status of worker

Public Service exception

Social and taxes advantages

Implementing secondary legislation

New Directive 2004/38/EC

Critique


What is free movement about?

What is free movement about?

  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.

Example

Example

Clean Car an Austrian company established in Vienna, appointed as manager a German resident in Berlin who was in the process of relocating in Austria.

Clean-car applied to the Austrian authorities to register their business.

Austrian law requires legal persons to appoint as managers persons residing in Austria.

Question: Can you see any problem here?

Answer

Judgment of the Court (Sixth Chamber) of 7 May 1998.

Clean Car Autoservice GesmbH v Landeshauptmann von Wien.

Reference for a preliminary ruling: Verwaltungsgerichtshof – Austria.

Freedom of movement for workers – National legislation requiring legal persons to appoint as manager a person residing in the country – Indirect discrimination.

Article 48 of the Treaty precludes a Member State from providing that the owner of an undertaking exercising a trade on the territory of that State may not appoint as manager a person not resident there.

A requirement that nationals of the other Member States must reside in the State concerned in order to be appointed managers of undertakings is such as to constitute indirect discrimination based on nationality, contrary to Article 48(2) of the Treaty, since a residence criterion is liable to operate mainly to the detriment of nationals of other Member States, non-residents being in the majority of cases foreigners.

It would be otherwise only if the imposition of such a residence requirement were based on objective considerations independent of the nationality of the employees concerned and proportionate to a legitimate aim pursued by the law of the Member State in question.


Who is a worker in the context of Union free movement?

Who is a worker in the context of Union free movement?

There is no definition in the Treaty or in any other legislation.

Definition has been determined by the ECJ.

Not by member states

Art. 45 TFEU simply says:

“…workers of member states”

member state nationality is necessary.

Moving to another country to work is necessary.


Who is a worker in the context of Union free movement?

Who is a worker in the context of Union free movement?

Lawrie Blum Case 66/85 Classic Definition.

Deborah Lawrie-Blum was a trainee teacher in a West German school. She was denied admission to a preparatory service at a teachers’ training college.

The German Court held a trainee teacher was not a worker.

The Court of Justice ruled

OBJECTIVELY DEFINED, A “WORKER” IS A PERSON WHO IS OBLIGED TO PROVIDE SERVICES TO ANOTHER IN RETURN FOR MONETARY REWARD AND WHO IS SUBJECT TO THE DIRECTION OR CONTROL OF THE OTHER PERSON AS REGARDS THE WAY IN WHICH THE WORK IS DONE.


Who is a worker? Consider this case

Who is a worker? Consider this case

Mrs Levin, a British national, moved to the Netherlands with her husband, a non-EU citizen.

Mrs Levin was earning a sum which was below what is considered in the Netherlands a minimum required for two people to support themselves.

Mrs Levin applied for a residence permit.

The Dutch authorities refused to issue it.

Do you think Mrs Levin is a worker under EU law?

See the definition in the previous slide.

See extract from the Court’s preliminary ruling in notes page.

Notes

Extract from Court’s judgment

  1. THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ALSO COVER A NATIONAL OF A MEMBER STATE WHO PURSUES, WITHIN THE TERRITORY OF ANOTHER MEMBER STATE, 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.
  2. THE MOTIVES WHICH MAY HAVE PROMPTED A WORKER OF A MEMBER STATE TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE ARE OF NO ACCOUNT AS REGARDS HIS RIGHT TO ENTER AND RESIDE IN THE TERRITORY OF THE LATTER STATE PROVIDED THAT HE PURSUES OR WISHES TO PURSUE AN EFFECTIVE AND GENUINE ACTIVITY.


And some more examples of who is a worker under EU law

And some more examples of who is a worker under EU law

Hoekstra: intention of person irrelevant; A person is a worker even if part-time employment is undertaken in order to benefit from EU rights.

Kempf: claiming social security benefits to supplement earnings is irrelevant.

Steymann: working for a religious community and receiving payment in kind.

Raulin: person on ‘on call’ contract for 8 months but had only actually worked 60 hours. Brevity of employment irrelevant.


Who is not a EU worker?

Who is not a EU worker?

Bettray case: in paid work as part of a drug detoxication therapy programme.

Not a worker, if work is ancillary to therapy, rehabilitation and re-integration in society.


Now consider the two situations: what is the difference?

Now consider the two situations: what is the difference?

  1. Mrs M and Mrs J, Dutch nationals, seek to bring to the Netherlands their parents, Surinamese nationals, who are dependent on them. Mrs M and Mrs J have never worked outside the Netherlands.
  2. Mrs A and Mrs B, German nationals, working in the Netherlands, seek to bring to the Netherlands their parents, Surinamese nationals, who are dependent on them.

Notes

MRS MORSON AND MRS JHANJAN, NATIONALS OF SURINAME, APPLIED FOR PERMISSION TO RESIDE IN THE NETHERLANDS IN ORDER TO TAKE UP RESIDENCE WITH THEIR DAUGHTER AND SON RESPECTIVELY, WHO ARE NETHERLANDS NATIONALS OF WHOM THEY ARE DEPENDANTS.

THE DAUGHTER AND SON HOLD EMPLOYMENT IN THE NETHERLANDS.

BUT HAVE NEVER BEEN EMPLOYED IN ANOTHER MEMBER STATE.


Who can bring their parents into the Netherlands?

Who can bring their parents into the Netherlands?

Mrs M and Mrs J

have never worked outside the Netherlands.

They are not EU workers.

They cannot bring their parents into the Netherlands, as members of heir family, under EU law.

Mrs A and Mrs B

work in another member state than their own.

They are EU workers.

They can bring their parents into the Netherlands, as members of heir family, under EU law.


Reverse discrimination

Reverse discrimination

The previous example illustrates that Free movement of workers requires movement of a worker between member states.

If no movement, then purely national situation. Union law does not apply.

A national worker may not rely on Art.45 TFEU vis-à-vis his/her own state.

As a result a national worker may enjoy less rights than a Union worker.


Work-seekers entitled to limited right of entry in order to seek work

Work-seekers entitled to limited right of entry in order to seek work

Literal interpretation of Art. 45 TFEU does not include them.

In 1975 in the Royer case the European Court granted the right of entry and residence to nationals of member states for the purpose of seeking work, pursuing self-employment or re-join family.

Member states must grant a reasonable length of time to seek work.

UK 6 months deemed reasonable; Belgium 3 months which can be extended.


So, once a Union worker, one has

So, once a Union worker, one has

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.


So, once a Union worker, one has

So, once a Union worker, one has

the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) 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;

(d) to remain in the territory of a Member State after having been employed in that State.


Worker’s family: 4 categories

Worker’s family: 4 categories

Right to install themselves with worker, irrespective of nationality

Spouse and descendants under 21 or who are dependants

Depedent relatives in the ascending line of worker and spouse.

Member states to facilitate entry of other relatives dependent on worker or living under same roof in country of origin.


Equal access to employment, housing, education and social rights

Equal access to employment, housing, education and social rights

Very wide range of directly enforceable rights.

No quota of nationals allowed in jobs.

Experience in another member state must be taken into account.


Examples

Examples

The widow of an Italian worker in France was entitled to fare reduction for large families.

An Italian working in France entitled to disability allowance for adult son.


Social security rules Article 48 TFEU (full text in notespage)

Social security rules Article 48 TFEU (full text in notespage)

…..measures of social security as are necessary to provide freedom of movement for workers;

…..to secure for employed and self-employed migrant workers and their dependants:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;

(b) payment of benefits to persons resident in the territories of Member States.

Notes

The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self-employed migrant workers and their dependants:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;

(b) payment of benefits to persons resident in the territories of Member States.


Rights in detail Directive 2004/38/EC of the European Parliament and of the Council

Rights in detail Directive 2004/38/EC of the European Parliament and of the Council

on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States Reflects ECJ sweeping statement that Union citizenship is destined to be the fundamental status of nationals of member states. (case C-184/99 Rudy Grzelcyk)

Notes

BUT the law continues to recognise rights to categories of persons, especially the economically active.

Citizens have a general right of residence up to 3 months without conditions or formalities other than ID (Art.6).

But with no right to social assistance; citizen must not become unreasonable burden on host state. (Art. 24 (2) and 14 (1)).

After 3 months right of residence depends on status: migrant, worker, self-employed, students etc.(art.7).

‘Worker’ retains superior status.


Can a member-state limit free movement of workers?

Can a member-state limit free movement of workers?

Yes, member-states can

Reserve employment in the public sector to nationals.

But what is public sector in an age of privatisation? See notespage for details.

Impose limitations justified on grounds of public policy, public security or public health. To be examined in detail in further sessions.

Notes

What is public sector?

1988 guidelines on what is not:

state education, public healthcare, non-military research, public administration.

ECJ has limited scope of public service:

public service = posts involving exercise of state powers and which presume a bond of allegiance to the state…Art. 45 TFEU applies to access to work; not after work commences.


Critique (I. Ward)

Critique (I. Ward)

the free movement of persons or of some persons?

Is the case-law incoherent and discriminatory?

Too narrow a focus on the economic characteristics of a person?

Free movement: a rhetorical illusion?


And what is the impact on UK politics?

And what is the impact on UK politics?

It’s an election year!

For seminar next week reflect on the EU rules we examined so far read selectively from materials in the next slides and aim to come to an assessment of the rules and the arguments.


To what extent is immigration a real challenge or a…

To what extent is immigration a real challenge or a…

goat

The Scapegoat by William Holman Hunt, 1854.


UK statistics and Home Office report what story do they tell?

UK statistics and Home Office report what story do they tell?

Office for National Statistics

http://www.ons.gov.uk/ons/rel/migration1/migration-statistics-quarterly-report/index.html

http://www.ons.gov.uk/ons/rel/migration1/migration-statistics-quarterly-report/august-2014/index.html

http://www.bbc.co.uk/news/uk-politics-28368567

A report on UK immigration has caused a row within government because Tory ministers believed it was too pro-European, sources have told Newsnight.

The leaked Home Office report draws together evidence from 67 businesses, think tanks, unions and experts.

It concludes the influx of EU migrants has had a largely positive effect, and cites evidence suggesting they are less likely to use benefits than Britons.

What are David Cameron’s options on EU immigration?

http://www.openeuropeblog.blogspot.co.uk/2014/10/what-are-david-camerons-options-on-eu.html

And elsewhere:

German ‘crackdown’ on EU citizens’ access to benefits: what does it involve?

http://www.openeuropeblog.blogspot.co.uk/2014/08/german-government-set-to-implement.html

Belgium to expel 2,712 EU citizens

31.1.2014 By EUOBSERVER http://euobserver.com/tickers/122940

Belgian authorities sent expulsion letters to 2,712 EU citizens for being an unreasonable burden on the welfare system, reports Euronews. The majority asked to leave come from Romania and Bulgaria, followed by Spain and Italy. Students and people who have lost their jobs are among those asked to leave.


And the wider picture: OECD Report Policy Challenges for the Next 50 Years

And the wider picture: OECD Report Policy Challenges for the Next 50 Years

This paper identifies and analyses some key challenges that OECD and partner economies may face over the coming 50 years if underlying global trends relating to growth, trade, inequality and environmental pressures prevail.

http://www.oecd-ilibrary.org/economics/policy-challenges-for-the-next-50-years_5jz18gs5fckf-en