EU: Free Movement of Workers

• Initially, free movement was based on rights for ‘workers’.
• Since the Maastricht Treaty (Nov 1, 1993), there are two aspects to free movement: free movement of workers and free movement of EU citizens.
• Free movement of workers includes the right of establishment to set up a business.
• Free movement also covers job seekers, family members of workers, and students.
• The goal of these freedoms is to achieve an internal market within the EU.
• TEU, art 1(2) aims to create an ever closer union among the peoples of Europe.
• TEU, art 3(1) aims to maintain peace in Europe.

Free Movement of Workers

• Starting point: TFEU, Part III (3) union policies and internal actions: title 1 the internal market (=single market)
• TFEU, Art 26 seeks to establish and ensure the functioning of the internal market.
• The internal market aims to comprise an area without internal frontiers, which ensures the free movement of goods, persons, services, and capital.
• TEU art 3(2) seeks to offer EU citizens an area of freedom, security, and justice without internal frontiers, in which the free movement of persons is ensured.
• TEU, Art 3(3) seeks to establish an internal market.
• TFEU, Part Three Union Policies and Internal Actions, Title IV, Chapter 1, Article 45 addresses the free movement of workers.
• Freedom of movement for workers is secured within the EU.
• It entails the abolition of nationality-based discrimination regarding employment, pay, and working conditions.
• It includes the right to accept jobs, move freely for employment, stay for employment, and remain after being employed, subject to certain conditions.
• Article 45 does not apply to employment in the public service.
• A cross-border element is required; it cannot relate to internal domestic matters.

What is a Worker?

• TFEU art 45: Free movement of workers is secured within the union.
• An autonomous definition by ECJ/CJEU case law defines a worker.
• Lawrie-blum v land baden-wurrtember defines a worker as someone who performs services of economic value under another's direction for remuneration over a period of time.
• Ms. Lawrie Blum was denied teacher training in Germany due to her nationality.
• EU law prohibits discrimination based on nationality.
• The school determined her services and working hours, making her a worker.
• Teaching lessons provided a service of some economic value to the school.
• Her pay could be seen as remuneration.
• The fact that she was in training didn't bar the application of article 48, as the service was performed under conditions of an employed person.
• Even though she worked few hours and received less pay than a teacher, the activities were effective and genuine.
• Levin v Staatssecretaris van justitie established that the concept of ‘worker’ includes part-time employees.
• Limits to the term ‘worker’: genuine and effective economic activity is required.
• Activities that are small scale/marginal aren't covered.
• Only those pursuing or desiring economic activity are guaranteed free movement.
• Antonissen, extended free movement to job seekers.
• A strict interpretation of Art 45(3) would jeopardize the chances of finding employment in another state.
• Article 45(3) gives nationals the right to move freely to seek jobs.
• 'Effect utile' interprets the treaty to make it effective and meaningful
• The Vienna Convention on the Law of Treaties (1969) says treaties should be interpreted considering the ordinary meaning of words, context, and purpose.

Jobseekers

• Jobseekers are subject to limits.
• In Antonissen, it was legitimate to remove a person after 6 months if there's no evidence of seeking employment.
• Governed by more detailed rules and citizenship provisions (EU citizenship directive).

Worker Overview

• Steymann v staatsecretaris van justitie: Work in a religious community in exchange for bed, food, and pocket money was considered effective economic activity.
• Bettray v staatssecretaris van justitie: Work as drug rehabilitation was not an effective economic activity since the main objective was rehabilitation.
• Levin v staatssecretaris van justitie: Part-time work under subsistence level can be considered genuine economic activity.
• Kempf v staatssecretaris van justitie: Part-time music teachers with supplementary social security can avail of free movement rights.
• Extends to those seeking work as per Antonissen, those retired or ill, families of workers, and provides access to social security benefits.
• Avoiding Discrimination makes the basic right meaningful.

General Principles About Applying Art 45 TFEU

• Addressee of the norm: the EU member states (TFEU = treaty of public international law)
• CJEU: teleological interpretation of EU law: some treaty provisions [and other sources of EU law] can have direct effect
• Van Gen den Loos established direct effect.
• The objective of the EEC Treaty implies it's more than an agreement creating mutual obligations between states.
• The Community constitutes a new legal order where states have limited sovereign rights, and includes obligations and rights for individuals.
• Rights arise not only where expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.’
• Spirit and general scheme of the provision are to be considered.
• The Vienna Convention on the Law of Treaties states that treaties should be interpreted considering the ordinary definition of terms, context and purpose.
• The treaty provision must be clear, precise and unconditional for reliance to be placed on it in the national courts

Workers Rights

• Primary EU Law: TFEU, art 45
• Secondary law:
• Regulation (EU) No 492/2011
• European parliament and council directive 2004/38 (citizens free movement rights) as corrected and amended (EU citizenship directive)
• TFEU art 45 – LIMITS: limitations justified on grounds of public policy, public security or public health d) To remain in the territory of the 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 e) The provision of this article shall not apply to employment in the public service

Limitations on the Free Movement of Workers – ‘Public Service’

• ‘Employment in the public service’ is out of the scope of TFEU art 45
• Must be connected with the exercise of powers conferred by public law and responsibility for safeguarding general interests of the state.
• Commission v Italy: Researchers at national research centres could not be described as employment in the public services, unless for duties of management or advising the state on technical questions
• Commission v Luxembourg: School teachers – need to protect national identity of small country, but disproportionate
• Note: Proportionality is always a consideration in relation to exceptions.

Public Policy

• Art 45(3): Free movement is subject to limitations justified by public policy, security, or health.
• Van Duyn v Home Office: Must be based on personal conduct; present association reflecting participation and identification.
• Adoui & Cornuaille v Belgium: A Law banned prostitutes from entering the country but not prostitution itself.
• R v Bouchereau: Any recourse by a national authority to the concept of public policy presupposes the existence of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society
• In addition to being an infringement, also a threat to public policy affecting fundamental interests of society

Regulation 492/2011

• No direct obstacles or laws aimed at keeping foreign nationals away when jobs are advertised, per Art 1.
• No special recruitment procedure for foreign nationals or national quotas, per Arts 3(2) and 4.
• The focus moves from blatant restrictions to subtler ones potentially making life harder for foreign nationals.
• A worker who is a national of a member state may not be treated differently from national workers.
• He/she shall enjoy the same social and tax advantages as national workers.
• Access to training in vocational schools and retraining centres

Families

• Art 10: Children of a national of a member state employed in another are admitted to education under the same conditions as nationals if residing there.
• Aims t integrate a workers family into host country

Case Law on Equal Treatment

• Union royale belge des societes de football association ASBL v Bosman: Rules limiting foreign players are precluded by Art 45 TFEU.
• Clean Car Autoservice GmbH v Landeshauptmann von Wien: Requiring a business to have a manager resident in Austria is discriminatory.
• Cristini v societe national des chemins de fer francais: Legal entitlement to rail discount care for large family, claimed after workers death
• Concerns an Italian widow with four children
• SNCF, offered discount cards to large families
• The concept of social advantages include a reduction in fares for large families

Indirect Discrimination

• Non-nationals should not be affected by rules or criteria
• Exception: Linguistic knowledge required by reason of the nature of the post to be filled
• Groener v Minister for Education and the City of Dublin Vocational Educational Committee: Qualification in Irish needed to teach in further education.
• Acceptable if applied in proportionate and non-discriminatory way in language policy.
• Angonese v Cassa di Risparmio di Bolzano SpA: Requiring evidence exclusively from one diploma issued in a province is disproportionate.