Free Movement of Workers

Lecture Aims

• To acquire a knowledge and understanding of the substantive rights provided for by the Treaty and EC secondary legislation in relation to the free movement of workers

• To examine the case law and understand the approach of the European Court of Justice in its interpretation of these rights

Lecture outline

• Article 39

• Who is a worker?

• Anti-discrimination provisions

• Rights of family members

• Supplemented by lecture on free movement of persons

Free Movement Provisions

• Article 39- workers• Article 43- freedom of establishment (self employed)• Article 49-freedom to provide services• Rights conferred by specific directives

– students– retired persons– persons of independent means

• Article 18-right of citizens to move freely

Article 39• 1. Freedom of movement of workers shall be secured within the Community.• 2. Such freedom of movement shall entail the abolition of any discrimination

based on nationality between workers of the Member States as regard 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:

– (a) to accept offers of employment actually made;– (b) to move freely within the territory of Member States for this purpose;– © 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, 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.

Article 39

• Abolition of any discrimination on the grounds of nationality (39 (2))(see also Article 12 EC)

• defines scope of the freedom (39 (3))• includes expressly stated limitations on the freedom

(39 (3))• limits scope of article in respect of work in the public

service (39 (4))

Principle of non-discrimination

• Article 12

• Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

Secondary legislation

• Art 39 supplemented by Art 40• allows Council to bring forward legislation to

secure the freedom

– Directive 64/221/EEC (derogations)– Directive 68/360/EEC (entry formalities and residence

permits)– Regulation 1612/68/EEC (equal treatment)

Secondary legislation

• Directive 2000/43/EC principle of equal treatment irrespective of racial or ethnic origin (prohibits both direct end indirect discrimination)

• Directive 2000/78/EC general framework for equal treatment in employment and occupation

Article 39

• Directly effective• Case 36/74 Walrave & Koch

– “prohibition of such discrimination does not only apply to the action of public authorities…”

– “to limit the prohibitions in question to acts of a public authority would risk creating inequality in the application”

• Case C-281/98 Angonese– “the prohibition of discrimination in Article 39…must be regarded as

applying to private persons as well”

Nationality requirement

• Worker must be a national of one of the Member States

• Confirmed in Regulation 1612/68/EEC• nationality is tested by way of the nationality law of

the state concerned• it is for each state to determine which persons qualify

for nationality

Scope of the term ‘worker’

• not defined in Treaty• not to be defined by national law• definition a matter of Community law -Case 75/63

Hoekstra-”if the definition were a matter…of national law, it would…be possible for each Member State to modify the meaning…and eliminate at will the protection afforded by the Treaty.”

• Generously interpreted by ECJ

Workers

• Case 53/81 Levin– includes part time employment providing it

involves effective and genuine activities.– Does not include activities which are marginal and

ancillary• “pursuit of effective and genuine activities to the exclusion of

activities on such a small scale as to be regarded as purely marginal and ancillary.”

Workers

• Case 139/85 Kempf-• irrelevant that the worker had to top up his

salary from public funds• the test was whether the economic activity in

question was effective and genuine as opposed to one that is marginal and ancillary

Workers

• Case 66/85 Lawrie-Blum– “Objectively defined, a worker is a person who is

obliged to provide services for another in return for monetary reward and who is subject to the direction and control of the other person as regards the way in which the work is to be done.”

Workers (Article 39)

• Case C-3/90 Bernini-employed for 10 weeks as a trainee- – a national court in assessing whether the services

are genuine and effective is entitled to examine all the circumstances and ask whether the person has completed a sufficient number of hours to familiarize themselves with the work

Workers

• Case 196/87 Steymann-genuine and effective albeit unconventional remuneration

• Case 344/87 Bettray-marginal and ancillary• Case C-357/89 Raulin on call contract in

which R only worked for 60 hours over three months

Work seekers

• No specific reference in Treaty• ECJ gives purposive interpretation and holds that

Article 39 includes work seekers• Case 48/75 Royer• Case C-292 Antonissen-person must demonstrate

that he is continuing to seek employment and has genuine chances of being engaged.

The worker’s family

• Worker’s family may also enter• See Regulation 1612/68-Article 10• which states that the following members of the workers family may accompany

the worker (irrespective of their nationality)– the worker’s spouse– his (and his spouse’s) descendants under the age of 21– his (and his spouse’s) descendants over the age of 21 who are dependent

on him– his (and his spouse’s) ascendants who are dependent on him

• In addition Art 10(2) also states that MS must facilitate the admission of any member of the family not coming with the above definition if that family member is dependent on the worker or lives under his roof in the country from where he comes

The worker’s family

• Parasitic/derived rights• family members do not need to be EC nationals• Case C-413/99 Baumbast and R• In addition Art 10 (2) also states that MS must

facilitate the admission of any member of the family not coming within the above definition if that family member is dependent on the worker or lives under his roof in the country from where he comes

The worker’s family

• The spouse

– Netherlands v Reed Case 59/85• must be in a marital relationship

The worker’s family

• Case 267/83 Diatta

• Case 370/90 Singh ( R v Immigration Appeal Tribunal and Singh, ex parte Secretary of state for Home Department)

The worker’s family

• Case C-413/99 Baumbast and R– a divorced spouse is entitled to remain if

he/she is the primary carer of the worker’s children

The worker’s family

• Case 316/85 Lebon– dependency a factual question–

• Case C -413/99 Baumbast and R – includes descendants of the worker and

descendants of the worker’s spouse

The worker’s family

• Art 10 of Reg.. 1612/68 qualified by 10 (3)

– the worker must have available for his family housing considered as normal for national workers in the region where he is employed

– however this provision must not give rise to discrimination between national workers and

– Case 249/86 Commission v Germany

Rights of the worker

• right to enter and remain for the purposes of employment

• right to remain after the employment has finished

• right to be treated without discrimination on grounds of nationality

Rights of Entry

• Dealt with in free movement of persons lecture

• Subject to the limitations in Art 39 (3)-public policy, public security, public health

• Substantiated by Directive 68/360/EEC

Prohibition against discrimination

• Art 39 (2)• Such freedom of movement shall entail the abolition

of any discrimination based on nationality between workers of the Member States as regard employment, remuneration and other conditions of work and employment.– Developed by Regulation 1612/68/EEC

– Regulation 1612/68/EEC also confers specific rights on family members

Prohibition against discrimination

• Treaty prohibits discrimination on grounds of nationality in Articles 12 and 39 and also Regulation 1612/68

• Includes a prohibition against both direct and indirect discrimination

• Direct-Case 167/73 Commission v France (French Merchant Seamen)

Prohibition against discrimination

• Indirect- where a rule applies irrespective of nationality but in practice it is much easier for nationals of the host state to satisfy– example-residency rules/qualification rules– Case 152/73 Sotgiu

Prohibition against discrimination

– Case C-415/93 Bosman• transfer rules laid down by Football (UEFA)• even though the rules applied equally to nationals (in law

and in fact)• such rules breached Art 39 if they impeded access to the

employment

Indirect discrimination

• In cases where there is indirect discrimination or rules which impede access to the market the rules may be objectively justified ( and must also be proportionate)– “Consequently the transfer rules constitute an obstacle to freedom

of movement for workers prohibited by Article 48 [now 39] of the Treaty. It could only be otherwise of those rules pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. But even if that were so, application of those rules would still have to be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose.” Bosman, paragraph 104

Prohibition against discrimination

• Case C-190/98 Graf– Rules applying without distinction to

national and non-national workers are capable of constituting an obstacle to the freedom of movement of workers where they affect access of workers to the labour market

Regulation 1612/68/EEC

• Title I-Arts 1-6 eligibility for employment

• Title II-Arts 7-9 equality of treatment within employment

• Title III-Arts 10-12 rights of family members

Equal access to employment

• Title I 1612/68– Art 1-the right to take up employment with the same priority as nationals of

the ‘host’ state– Art 2-right to apply/take up offers of employment without any discrimination– Art 3-MS shall not limit applications or impose conditions not applicable to

own nationals • Case 167/73 Commission v France (French Merchant Seamen)• Case 29/84 Commission v Germany (Re nurses)

– Art 4-no quotas or restrictions on numbers

– Art 5-non nationals must be afforded same support in seeking work

Equal access to employment

• Includes any conditions which make it more difficult for foreign nationals to take up employment

• Case 33/88 Allúe

– national legislation where contracts for foreign language teachers differed from those of national

Linguistic requirements

• Art 3 (1) Reg. 1612/68/EEC• It is permissible to specify a linguistic requirement

where required by reason of the nature of the post to be filled

• Case 379/87 Greoner-language requirement for teachers was permissible

• Case C-281/98 Angonese

Equality of treatment

• Art 7 (1) 1612/68• A worker who is a national of a Member State may

not, in the territory of another MS, be treated differently from national workers by reason of his nationality in respect of any conditions of employment – Case 152/73 Sotgiu

Article 7(2) Social and tax advantages

• The ‘guest’ worker “shall enjoy the same social and tax advantages as national workers”

• Case 207/78 Evan– “all those advantages which, whether or not

[they] are linked to a contract of employment, are generally granted to national workers, primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory.”

Article 7(2) Social and tax advantages

• Case 32/75 Fiorini (née Christini) v SNCF– “the equality of treatment…include[s] all social and

tax advantages, whether or not attached to the contract of employment, such as reductions in fares for large families”

• this right extends to family members • F was the surviving widow of Italian worker who

had worked in France

Article 7(2) Social and tax advantages

• Case 137/84 Mutsch-right to have court case conducted in a particular language

• Case 65/81 Reina- discretionary childbirth loan

Article 7(2) Social and tax advantages

• Case C-237/94 O’Flynn -funeral grant• BUT...• Case 316/85 Lebon-right to social and tax

advantages does not extend to work seekers

Vocational training under Article 7 (3)

• Art 7 (3) Worker shall have “the same right and under the same conditions as national workers, have access to training in vocational schools and retraining centres”– Case 39/86 Lair “The concept of vocational school is a more limited

one and refers exclusively to institutions which provide only instruction either alternating with or closely linked to an occupational activity, particularly during apprenticeship”

– Case 24/86 Blaizot -university education not excluded provided it led to a qualification required for particular trade/profession or the skills needed for trade/profession

– narrow interpretation of vocational training under Art 7 (3)

Training for workers

• Art 7 (3) deals with access to training

• questions raised regarding financial support for that training

• issue of maintenance grants- can these be construed as a social and tax advantage under Art 7 (2)?

Vocational training

– Case 39/86 Lair a person who was a worker but gave up work to become a student could receive a grant (as a social and tax advantage) providing there was a link between their occupation and the studies (except where they had become involuntarily unemployed)

– Case 197/86 Brown

Vocational training

– Case 197/86 Brown• “it cannot be inferred ...that a national will be entitled to a grant for studies in

another MS by virtue of his status of a worker where it is established he acquired that status exclusively as a result of his being accepted for admission to university to undertake the studies in question. In such circumstances, the employment relationship, which is the only basis for the rights deriving from Regulation 1612/68, is merely ancillary to the studies.“

• Although Brown was a worker he was not entitled to claim the grant as a social and tax advantage because he had acquired the status of a worker as a result of him being accepted at university

Vocational training

• Case C-184/99 Grzelczyk• French nationals studying in Belgium• applied for minimex (training subsistence allowance) in final

year of his studies (he had worked during first 3 years to support himself)

• refused on grounds that he was not a Belgian national• he was not a worker• ECJ held that as a ‘citizen’ of the EU he was entitled to not be

discriminated against in respect of his application for the minimex (See Free Movement of Persons lecture)

Further rights

• Trade Union activities- Art 8 Reg. 1612/68-equal treatment as regards trade union membership– Case C-213/90 ASTI

• Housing-Art 9 Reg. 1612/68 equal treatment with

regard to access to housing – Case 305/87 Commission v Greece

Rights of family members

• Reg. 1612/68– Article 11-right to take up employment employment (even if

they are not an EC national) - Case 131/85 Güll

Rights of family members

• Article 7 (2) Social and tax advantages to family members– not direct right– must be of direct/indirect benefit to the worker– thus family members only have derived/parasitic

rights– Case 63/76 Inzirillo

– Case 32/75 Christini

Children of workers

• Article 12-”the children “shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State...

• Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions”– Case 9/74 Casagrande- ‘conditions’ includes all general measures

intended to facilitate educational attendance including maintenance grant

– Case 42/83 Commission v Belgium

– Case 389/87 Echternach and Moritz

Children of workers

• Case C-413/99 Baumbast and R • whilst children in the host state accessing

education their primary carer can remain with them (even after a divorce from the worker)

• ECJ emphasised in the judgment the importance of education for migrant children

Right to remain

• Art 39 EC Treaty refers to right to remain after having been employed subject to conditions in implementing legislation

• Art 18 EC Treaty (citizenship) . See Case C413/99 Baumbast– “A citizen of the European Union who no longer enjoys aright

of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18 (1) EC Treaty”

– Regulation 1251/70-right to remain after retirement-conditions laid down in directive

Summary

• Article 39 prohibits discrimination on grounds of nationality– includes direct and indirect discrimination– indirect discrimination may be permitted if it

is objectively justified and proportionate– Regulation 1612/68 provides ‘flesh’ to

Article 39 and also extends rights to the worker’s family members

The public service exception

• Art 39 (4)- The provisions of this Article shall not apply to employment in the

public service.

• Case 152/73 Sotgiu – “the exception will only be applicable if [the] person possesses a power of discretion

with regard to individuals or if his activity involves national interests-in particular those which are concerned with the internal or external security of the state”-per Advocate General Mayras

The public service exception

• Case 149/79 Commission v Belgium – ”posts which involve direct or indirect participation in the exercise of powers conferred

by public law and duties designed to safeguard the general interests of the State or of other public authorities. Such posts in fact presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality”

The public service exception

• Essential factor is the nature of the work done not simply because the work is in the public sector

• Art 39 (4) is narrowly interpreted

– Case 66/85 Lawrie Blum-teacher not within public service exception

Internal Situations

• Art 39 only applies to Community workers-workers exercising the freedom to work in another MS

• does not prohibit discrimination in wholly internal situations (described as reverse discrimination)

– Case 175/78 Saunders– Case C-18/95 Terhoeve

Conclusion

• Examined Article 39 and Regulation 1612/68• Examined the rights of nationals to work in

another Member State and the right to be accompanied by family members

• Further lecture on free movement of persons