Week 4 Lecture PDF

25.09.24 Dr. Calum Alasdair Young FREE MOVEMENT OF WORKERS AND CITIZENS  Learning Goals Identify and analyse key concepts, legal provisions and CJEU landmark cases in the area of the EU internal...

25.09.24 Dr. Calum Alasdair Young FREE MOVEMENT OF WORKERS AND CITIZENS  Learning Goals Identify and analyse key concepts, legal provisions and CJEU landmark cases in the area of the EU internal market law to advise potential clients on matters related to the four freedoms. Free Movement of Workers Free Movement of Citizens Wider Citizenship 2 Free Movement of Workers and Citizens - Young  History Begins with Free Movement of Workers One of the original 4 freedoms of the EU Initially just free movement, based on pure economic incentives of the internal market Over time, broader equal treatment Access to jobs, access to social benefits 3 Free Movement of Workers and Citizens - Young  History Treaty of Maastricht (1992) Introduced a new concept of EU Citizenship Rights given to anyone who is a national of a Member State Broader scope than free movement of workers Less connected to economic activity, other categories (including students) 4 Free Movement of Workers and Citizens - Young  Grzelczyk 2001 ‘EU citizenship is a fundamental status of nationals of the Member States’ Implication this is a new, separate, superior status to previous worker status Taken very seriously by the CJEU Steadily increased in salience as years went by 5 Free Movement of Workers and Citizens - Young  A Problem Multiple overlapping areas of law E.g. French student doing a part-time job in Italy What area of law applies? Need to consider the law in this overlapping way Workers, citizenship (this lecture) Establishment, services (can also involve companies, next week) 6 Free Movement of Workers and Citizens - Young  Main Areas of Law Today Article 45 TFEU (workers) The Citizenship Directive (CRD) Regulation 492/2011 Case Law 7 Free Movement of Workers and Citizens - Young  Overarching Structure 1. Does EU law apply at all? 2. Which area of law applies? 3. What rights to migrants possess? 4. Is the national restriction in breach of EU law? 5. Is there a justification for that national restriction? 6. Is that restriction proportional? 8 Free Movement of Workers and Citizens - Young  1. Does EU law apply at all? Broad scope of EU law Applies to the following, with some exceptions. - those with a nationality of an EU Member State - have moved to another EU Member State - (in the case of workers, establishment, and services) are engaged in some economic activity 9 Free Movement of Workers and Citizens - Young  1. Does EU Law Apply – MS Nationals Nationals of a Member State are EU Citizens (Article 20 TFEU) Rottmann – granting of citizenship is Member State competence, but removal of citizenship falls within EU citizenship law and must be done proportionally Cannot remove national citizenship (and thus EU citizenship) when this would render them stateless 10 Free Movement of Workers and Citizens - Young  1. Does EU law Apply – interstate element Vast majority of applicable situations involve a MS national in another MS Carpenter suggested low threshold to be considered movement (wife of someone doing cross-border business) 11 Free Movement of Workers and Citizens - Young  1. Does EU Law Apply – Ruiz Zambrano Ruiz Zambrano Colombian national parents Belgian children born in Belgium and had never left Parents at risk of deportation, children would also have to go Parents had derived right of residence in the EU, as deporting them would deprive the EU citizen children of ‘The genuine enjoyment of the substance of the rights’ 12 Free Movement of Workers and Citizens - Young  1. Does EU Law Apply – Ruiz Zambrano Significant expansion of the scope of EU law and EU citizenship Multiple purely internal situations now in play Following cases narrowed it down to essentially only referring to full deportation from the territory of the Union - not enough to be deported back to another Member State 13 Free Movement of Workers and Citizens - Young  1. Does EU Law apply – economic activity Free movement of workers, (also establishment and services) require some economic activity to be engaged Jundt – is required, but low threshold Not required when EU citizenship is engaged – Baumbast Something of a separation of citizenship from economic nature, aim at moving towards a genuine citizenship Dano showed the clear outer limit of this philosophy, discussed later 14 Free Movement of Workers and Citizens - Young  2. Which Area of Free Movement? Workers? Posted Workers? Citizenship? Establishment (Companies and self-employed, next week)? Services (next week)? 15 Free Movement of Workers and Citizens - Young  2. Which Area of Free Movement? Article 21 TFEU – every citizen of the Union Economically Active Students People of Independent Means (PIM) Can include non-economically active (but rights more limited) 16 Free Movement of Workers and Citizens - Young  2. Which Area of Free Movement? Workers – services under the direction of another in return for remuneration – Lawrie-Blum More than ‘purely marginal and ancillary’, but can include part-time - Levin Also include job-seekers – Antonissen Worker status can be retained post-employment in a variety of likely scenarios (Article 17(3) CRD) 17 Free Movement of Workers and Citizens - Young  2. Which Area of Free Movement? A "posted worker" is an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency. Covered by the Directive 96/71/EC (the Posted Workers Directive) and other pieces of legislation revising and enforcing it 18 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have? Tiered system, differential access - which is relevant to solve the legal problem at hand? Up to 3 months residence basically without conditions (Article 6 CRD) 3 months to 5 years residence under some conditions (Article 7 CRD) Permanent Residence (Articles 16 and 17 CRD) Family Members Equal Treatment Posted Workers Others 19 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – up to 3 months residence Article 6 CRD Any Union Citizen can move to and reside in another Member States for up to 3 months Valid ID card or passport required Family Members accompanying them or joining them No access to social assistance if not economically active 20 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – up to 3 months residence Article 7 CRD Right of residence for more than 3 months if one of: - employed - self-employed - Have sufficient resources not to become a burden on social assistance and have comprehensive sickness insurance - Are enrolled for study, have comprehensive sickness insurance and a declaration they will not become burden on the social welfare system - family member accompanying or joining an EU citizen engaging in one or the above 21 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Residence Beyond 3 Months Dano Non-economically active migrant in Germany Sought access to social benefits Court held the following: - Article 7(1)(b)CRD designed to prevent economically inactive citizens from using welfare system to fund their means of subsistence - Lawful residence (in this case economic activity) required as a precondition for access to social welfare 22 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Permanent Residence Article 16 CRD Legally-resident for 5 years (see previous slides) can acquire permanent residence Article 17 covers a variety of less common scenarios connected to permanent residence through retirement, incapacitation, or work as a frontier worker 23 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Family Members Family members can usually accompany moving Union citizens in various circumstances (see previous slides) Family members defined in Article 2 CRD - spouses - registered partners - direct descendants under 21 who are dependent - ascendant family members, or that of the spouse, who are dependent 24 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Family Members Coman Same Sex couple married in Belgium Moving to Romania, where marriage wasn’t recognized Court relied upon Article 21(1) TFEU and the CRD to hold that despite non-recognition there was an EU law right to move and reside. 25 Free Movement of Workers and Citizens - Young  BREAK 26 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Equal Treatment Entitled to equal treatment as an EU citizen National rules should be neither directly nor indirectly discriminatory Directly discriminatory – permitted only on express grounds (Articles 45, 49, 56, 21 TFEU, Article 24 CRD) Indirectly discriminatory rules can be justified – open list, e.g. - professional ethics (Van Wesemael) - consumer protection (Tourist guides) - Requirement of genuine link to host country (Collins) 27 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Equal Treatment However remember Dano – right to social benefits not unlimited, lawful residence required Regulation 492/2011 provides broader equal treatment from day one if you are a worker Social benefits included But also e.g. - conditions of employment including remuneration and dismissal - vocational training - access to housing - much more 28 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Posted Workers Remain employed by the sending company However, terms and conditions of employment in a number of areas are guaranteed at the same level in the host state, including (Article 3 PWD): - remuneration - leave - rest periods - protective measures with regards to pregnancy - workers accommodation 29 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Posted Workers Objective is to avoid undercutting of local standards using posted workers Application of Directive met with mixed results and some controversy (see Viking and Laval next week) Potentially problematic interaction with Treaty freedoms New Enforcement Directive in 2014 Original Directive updated in 2018 30 Free Movement of Workers and Citizens - Young  3. What Rights Do Migrants Have – Other EU citizenship also comes with a wider variety of rights Voting in local and EU elections (Article 22 TFEU) Right to diplomatic and consular protection (Article 23 TFEU 31 Free Movement of Workers and Citizens - Young  4. What rules and practices are prohibited by the Treaties? Focus so far has been on secondary legislation However at various points, situations have arisen outside of the scope of legislation, so the question becomes - what rights do the Treaties provide? Can rely on these both in conjunction from secondary legislation, as well as separate from it 32 Free Movement of Workers and Citizens - Young  4. What rules and practices are prohibited by the Treaties? Discriminatory rules will always breach the Treaties unless justified (see next section) Non-discriminatory rules which hinder ‘market access’ are increasingly considered restrictions to free movement prohibited by the Treaties. 33 Free Movement of Workers and Citizens - Young  4. What rules and practices are prohibited by the Treaties? Bosman – non-discriminatory rules required a transfer fee for out-of-contract football players, resulting in difficulties finding employment for some of these individuals Court ruled this affected workers access to free movement and employment in other countries Principle has applied somewhat similarly to other areas in cases such as Gebhard and Viking and Laval (see next week) 34 Free Movement of Workers and Citizens - Young  4. What rules and practices are prohibited by the Treaties? Market access approach has been much criticized Overly broad Undemocratic? Unclear? 35 Free Movement of Workers and Citizens - Young  5. Available Justifications Available justifications Dependent on scenario, available in Treaty Articles, case law, and secondary legislation 36 Free Movement of Workers and Citizens - Young  5. Available Justifications – directly discriminatory measures If a measure is directly discriminatory, only express derogations in the Treaty are available Article 45(3) TFEU (for free movement of workers) - Public policy - Public security - Public health Public Service expressly excluded (Article 45(4)) - not just working for the state, exercise of public powers and safeguarding of the interest of the state (Commission v Belgium) 37 Free Movement of Workers and Citizens - Young  5. Available Justifications – indirectly discriminatory measures Gouda established ‘imperative reasons in the public interest’, similar to Cassis de Dijon in the area of goods, e.g. - rules to protect service recipients - protection of intellectual property - protection of workers - consumer protection - conservation of historic and artistic heritage Non-exhaustive list, over 50 others recognized at this point across different cases 38 Free Movement of Workers and Citizens - Young  5. Available Justifications – CRD CRD restrictions and justifications are also based on length of residence – the longer you have been present, the more serious a reason is required for deportation. 39 Free Movement of Workers and Citizens - Young  5. Available Justifications – CRD Article 27(2) CRD for residents present for up to 3 months Public policy, security, and public health Must be based on personal conduct and be sufficiently serious Article 29(1) provides reference to WHO decisions on epidemic potential with regards to public health Some further procedural protections - notification, time to leave, judicial redress (Article 31) 40 Free Movement of Workers and Citizens - Young  5. Available Justifications – CRD 3 months to 5 years Only public security and public health (Article 29(2)) Must take into account a variety of factors including: human rights; age; integration; family and economic situation; extent of links with country of origin (Article 28(1)) 41 Free Movement of Workers and Citizens - Young  5. Available Justifications – CRD Longer than 5 years Serious grounds of public policy After ten years – may not be expelled unless decision taken on imperative grounds of public security Tsakouridis lowered the bar somewhat beyond the extremities previously suspected, but still narcotic-related organized crime 42 Free Movement of Workers and Citizens - Young  6. Proportionality The Court needs to strike a balance between the legitimate interests of Member States, and the overall goal of free movement Multiple instances where these things come into contrast 43 Free Movement of Workers and Citizens - Young  6. Proportionality Breaches and justifications are subject to both human rights and proportionality Functions similarly to other proportionality tests - legitimate aim (see section 5) - does the measure achieve that aim? - is there a less restrictive way to achieve the same aim? 44 Free Movement of Workers and Citizens - Young  Overarching structure 1. Does EU law apply at all? 2. Which area of free movement law applies? 3. What rights to migrants possess? 4. Is the national restriction in breach of EU law? 5. Is there a justification for that national restriction? 6. Is that restriction proportional? 45 Free Movement of Workers and Citizens - Young  Conclusions Complex, overlapping areas of law between free movement of workers, citizenship, and others Overarching structure that allows the application of the given area of law depending on which right is invoked. Balance of the aim of creating a functional system of free movement with legitimate state interests 46 Free Movement of Workers and Citizens - Young