EU Internal Market Law and Free Movement

Introduction

• The presentation covers the free movement of workers and citizens within the EU.
• The presenter is Dr. Calum Alasdair Young from the University of Applied Sciences, The Hague.
• Date of presentation: September 25, 2024.

Learning Goals

• Analyze key concepts, legal provisions, and CJEU landmark cases related to EU internal market law.
• Advise potential clients on matters related to the four freedoms of the EU internal market.
• Focus on free movement of workers, free movement of citizens, and wider citizenship.

History

• Free Movement of Workers started as one of the original four freedoms of the EU, focusing primarily on economic incentives.
• The scope broadened over time to include equal treatment and access to social benefits.
• The Treaty of Maastricht (1992) introduced the concept of EU citizenship, broadening the scope beyond workers to other categories like students.
• The 2001 Grzelczyk case established EU citizenship as a fundamental status.

A Problem

• Legal areas related to free movement of workers and citizens often overlap.
• Examples like a French student working part-time in Italy highlight the need to consider overlapping laws including workers' rights, citizenship, establishment, and services.

Main Areas of Law Today

• Article 45 TFEU covers worker rights.
• The Citizenship Directive (CRD).
• Regulation 492/2011.
• Relevant case law.

Overarching Structure

• Crucial questions to consider:
  • Does EU law apply?
  • Which specific area of EU law applies?
  • What rights do migrants possess?
  • Is national restriction a breach of EU law?
  • Is justification for national restriction valid?
  • Is the restriction proportional?

1. Does EU Law Apply?

• EU law generally applies to nationals of EU member states who have moved to another member state, for workers, establishment, or services, and engaged in economic activity, but there are exceptions.
• The Rottmann case illustrates that granting of citizenship is a member state's responsibility; however, removal of citizenship falls under EU citizenship laws and must be proportionately carried out.
• Nationals of a member state are automatically EU citizens.
• The Ruiz Zambrano case significantly expanded the scope of EU law and EU citizenship. It determined that deportation of a parent would violate children’s rights, therefore deportation was not proportional.

1. Does EU Law Apply (cont'd)

• The Carpenter case involved a relatively low standard for cases involving free movement that are largely internal to the EU.
• The presentation highlights that the vast majority of applicable situations involve a national of a member state living/working in another member state.
• A significant point from the presentation, based on various cited cases, is that a low threshold for free movement applies in many, even purely internal, situations.

2. Which Area of Free Movement?

• Key categories include workers' rights, posted workers, citizenship, establishment, and services, and a detailed explanation of these topics is planned for future sessions.
• EU citizens are encompassed in Article 21 TFEU.
• Students, people with independent means (who may not be economically active), and economically active EU citizens are included in the movement.

2. Which Area of Free Movement? (cont'd)

• Workers, services under the direction of another (for remuneration), and job-seekers are included.
• A "posted worker" is an employee sent by their employer to work temporarily in another EU member state.
• This falls under Directive 96/71/EC (the Posted Workers Directive).

3. What Rights Do Migrants Have?

• A tiered system and differential access exist for migrants.
• Up to three months, residence is generally permitted without conditions.
• From 3 months up to 5 years, residence is possible under certain conditions (e.g., sufficient resources, insurance).
• Permanent residence is possible depending on whether a person has been legally resident for 5 years.
• Family members of EU citizens have the right to join them.
• Equal treatment is a fundamental right for migrant Union citizens. However, national rules cannot be directly or indirectly discriminatory unless justified.
• Several examples were given demonstrating the details associated with each of these.

3. What Rights Do Migrants Have? (cont'd)

• Migrant rights regarding posted workers include the right to the same employment conditions as nationals (e.g., remuneration, leave, rest periods, protective measures, accommodation).
• There may be situations where migrants’ rights are potentially problematic due to inconsistencies with treaty freedoms, but the EU has established new enforcement directives to minimize these problems and is reviewing other related Directives.

3. What Rights Do Migrants Have? (cont'd)

• EU citizenship comes with wider rights, including voting in local and EU elections, and diplomatic/consular protection.

4. What Rules and Practices Are Prohibited by the Treaties?

• Discriminatory rules and practices generally violate treaties, unless justified.
• Non-discriminatory rules hindering market access are also prohibited.
• Cases like Bosman showed that rules imposing fees for transfer of out-of-contract football players limited market access/free movement are prohibited.
• The presentation also touches on criticisms of the market access approach, including concerns about its breadth and clarity.

5. Available Justifications

• Justifications depend on the situation and are found in treaties, case law, and secondary legislation.
• Directly discriminatory measures, such as public policy, security, health, need express justification in the treaties as exceptions.
• Indirectly discriminatory measures can be justified if they address imperative reasons in the public interest (e.g., protecting consumers or cultural heritage).

5. Available Justifications (cont'd)

• Length of residence is also a factor affecting justification.
• The longer a person has been in a country, the more compelling a reason for any related restriction needs to be.

6. Proportionality

• Balancing legitimate interests of member states with the goal of free movement necessitates the application of proportionality.
• To be proportional, a measure must achieve its aim with no unnecessary restriction.

Conclusions

• Free movement of workers, citizenship, and other related areas of EU law contain complex overlaps.
• The overarching structure assists in determining which specific area of law applies based on which rights are under consideration.
• The appropriate balance between the principle of free movement and legitimate state interests must also be addressed.