- Art 45 TFEU (ex art 39 EC): workers have right to move freely across EU to seek and take up employment in other MSs on same terms as their nationals.
- Rationale: allowing workers to move from MSs of high unemployment to MSs where there is a need for labour. Principle of non-discrimination would entail selection on basis of merit.
- In practice, however, workers prefer to stay at home, even if unemployed.
- But note workers in newer MSs are keen to take advantage of free movement rights, especially cos of significant wage differentials. To address concerns, the newer Accession Treaties provided for transitional arrangements, allowing old MSs to decide whether to allow free movement of labour without restriction.
- In Reg 1612/68 vs , EU adopted series of measures giving rights to workers and their families, to encourage movement.
- CRD then reflected change of perspective. Workers were no longer seen as factors of production, but EU citizens with enforceable rights against host state.
Who is a worker?
- No definition I Treaties, but ECJ requires an autonomous meaning based on objective criteria, for sake of uniformity.
- Where Union nationals are in a relationship of subordination, under the employer’s control.
- Lawrie-Blum, 1986: essential feature of employment r/s is one performing services for and under direction of another, in return for remuneration.
- It is for national court to determine if this relationship exists.
- Need genuine and effective economic activity, under art 3 TEU and art 2 EC
- Steymann, 1988: plumber worked for Bhagwan community, and community looked after his material needs/paid him pocket money. Held to be indirect quid pro quo for genuine and effective work, hence he was a worker.
- Cf Bettray, 1989: paid activity by state as part of drug rehabilitation programme, tailored to indiv’s needs, was NOT genuine and effective economic activity.
- Levin, 1982: part-time chambermaid earning less than subsistence wage was still worker, since it was still an effective means of improving indiv’s living conditions.
Broadening the category
- Martinez Sala, 1998: extended it to those seeking work – job-seekers must be allowed at least 3 months to look for work in host state.
- Confirmed by art 14(4)(b) CRD: Union citizen job seekers can’t be expelled as long as they can show evidence that they are continuing to seek employment and have genuine chance of being engaged.
- Art 7(3) CRD: citizens who are no longer workers/self-employed will retain status in 4 situations:
- Temporary incapacitation through illness/accident
- Involuntarily unemployed after being employed for >1 year, and registered as job seeker
- Involuntarily unemployed after completing fixed term contract of <1 year, or within 1st 12 months of employment on non-fixed term contract, and registered as job seeker
- Embarking on vocational training (should be related to previous employment)
- CRD basically confirms and extends ECJ case law
Can the Treaty provision be invoked against the defendant?
- Free movement provisions have direct effect (Treaty provisions) ➔ French Merchant Seamen, 1974
- How about horizontal direct effect?
- Walrave and Koch, 1974: ECJ suggested Treaty provisions had both vertical and horizontal DE, in reference to the rule on non-discrimination.
- But subsequent cases were usually against public authorities/professional regulatory bodies. Still not really horizontal.
- Angonese, 2000: confirmed that free movement of workers provisions have horizontal DE. Job applicants to a private bank had to provide certificate of bilingualism issued by local authority. ECJ held that prohibition of discrimination in art 45 applied to collective agreements on paid labour and contracts between indivs.
- Manchester Taxi number vs Viking, 2007: ECJ held that art 49 could be employed against trade union association, seeming to draw analogy with professional regulatory bodies.
Wholly internal situations are excluded from scope of application.
- R v Saunders: British woman couldn’t challenge undertaking given to court in England that she return to Northern Ireland and not visit England for 3 years – all within single MS!
- Purely hypothetical prospect of employment in another MS is insufficient!
- Moser, 1984: German national denied access to training course in Germany due to his political affiliations. Argument that this would prevent him from applying from teaching posts in other MSs failed.
- Kremzow, 1997: Austrian judge sentenced to life for murder. Court held there was mere hypothetical prospect of him exercising right of free movement.
- Indiv can invoke provision against own MS, once indiv has exercised/is exercising right of free movement.
- Surinder Singh, 1992: Indian national married British wife, both livd in Germany. Upon return to UK, Indian national not allowed to join wife – ECJ held EU law applied. No longer wholly internal situation. Otherwise, British wife would be be discouraged from exercising EU rights on free movement if conditions of entry/residence upon return to home state were not at least equivalent to those upon entry to another MS.
- But note CRD art 35: MSs can refuse/terminate/withdraw rights under CRD in event of abuse of rights or fraud ➔ arises in cases of marriages of convenience (Metock, 2008)
- What if there is reverse discrimination?
- EU law does not preclude this! Migrants into host state can enjoy more favourable treatment than nationals of host state who have never moved (Moser).
- Rationale for EU law allowing this:
- Jurisdictional divide between EU and domestic law.
- “virtual representation” – migrants can’t gain access easily to host state’s domestic political processes, hence need additional protection by EU law.
- Criticism: AG Sharpston in Walloon vs Carpet cleaning Glasgow Govt, 2008:
- FACTS: Belgium divided into Flemish and Walloon region. Flemish govt offered insurance, but only for residents of Flemish region, or residents of other MSs who were working in Flemish region. Hence Belgium citizens resident in Walloon region were worse off than these migrants.
- AG thought the wholly internal rule ought to be reconsidered. Citizens of EU should be able to rely on citizenship + principle of non-discrimination (art 18 TFEU) to access benefits.
- But ECJ rejected this, and reasserted the rule.
- Erosion of the wholly internal rule:
- Angonese, 2000: “potential” link with EU law might suffice
- Deliege, 2000: ECJ held that in principle, EU law applied cos there was “degree of extraneity” from fact that A was athlete who had participated in competition in another MS.
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- Right of free movement of persons is more sensitive than that of goods ➔ greater security/welfare implications. Also, social burden being imposed on host state.
- Over the years, the link between economic activity and free movement of persons has been eroded. This has culminated in the recognition of the status of citizen of the Union at Maastricht.
- Art 20-25 TFEU
- Recognises a general, free-standing right to move and reside, regardless of whether person is economically active.
- Still subject to limitations and conditions laid down in Treaties/secondary legislation.
- Grzelczyk, 2001: “Union citizenship is destined to be the fundamental status of nationals of the MSs” – principle of equal treatment regardless of nationality, subject to express exceptions.
- Consolidated by the EP and Council Directive 2004/38 – Citizens’ Rights Directive (CRD)
Scope of Application of the Treaty Provisions
- Is indiv/corporation a national of a MS?
- Depends on national rules on nationality – MSs are the gatekeepers to Union citizenship and free movement rights.
- Ex p Kaur, 2001: it is for each MS, having due regard to EU law, to lay down conditions for acquisition/loss of citizenship.
- Ex p Commerzbank AG, 1993: for companies, look to company’s “seat” to determine nationality – where company has registered office/central admin/principal place of business.
- Is he engaged in an economic activity?
- Jundt, 2007: means that activity must not be provided for nothing, but no requirement for service provider to be seeking to make a profit.
- Can he be classified as worker/self-employed/service provider/citizen?
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Being one of the most fascinating area of biology today, research on stem cells is leading scientists to investigate the possibility of cell-based therapies to treat various diseases, which is often referred to as regenerative medicine. However like many expanding fields of scientific enquiry, research on stem cell treatments raises scientific questions as rapidly as it generates new discoveries. In this essay, both potential advantages and disadvantages of using stem cell treatments are discussed with relevant examples, taking into consideration of the ethical issue involved.
Stem cells are types of undifferentiated cells, which are capable of self-renewal, and can be induced to become specialised cells of many types including heart muscle cells, nerve cells and skin cells. There are three types of stem cells, which are Embryonic stem (ES) cells and Adult stem cells and Induced pluripotent stem cells. ES cells are derived from 4-5 days old embryos, which are often donated from IVF clinics, and it is a hollow ball of cells (balstocytes) that made up of two components: trophoblasts, which contribute to development of placenta, and inner cell membrane that can give rise to embryo itself. Adult stem cells are undifferentiated cells that are found in differentiated cells and some can self-renew, become specialised cells (multipotent) while other adult stem cells are only capable of giving rise to one specific cell type. Induced pluripotent stem cells are created artificially in the lab by “reprogramming” a patient’s own cells. iPSCs can be made from readily available cells including fat, skin and fibroblasts.
Since these stem cells can be stimulated to differentiate into a wide range of different, mature cell types, these cells have great potential for therapeutic benefits such as cell based regenerative therapies and drug testing. The use of these cells could radically alter the prognoses of patients with a wide range of long-term, serious medical conditions – stem cells could offer cures for some such conditions(type I diabetes mellitus; Parkinson’s disease), whilst current therapies only really address the management of symptoms.
The human immune system has evolved to have appropriate defensive response to various dangerous pathogens while ignoring innocent ones such as helminths. The constant presence of helminth infections is still prevalent in developing countries and it is largely controlled in the developed or western world. It has been proposed that knowledge of the immune system by certain microbes and parasites can prevent in part the development of inflammatory disease.
In particular, the interplay between helminth infection and allergy disorders have been studied in great detail. It has been suggested by Smits et al., in 2010 that helminth-induced mechanisms not only regulate host immunity to the worms, resulting in mutually beneficial environment for survival of both parasite and host, but may also control the development of allergic disease.
Both allergy and helminth infection are linked with raised levels of igE, tissue eosinophilia and mastocytosis and CD4+ cells that preferentially secrete Th2 cytokines; IL-4, 5 and 13. It is suggested that increased an increased level of IgE in asthma in some cases may be due to a faulty IL-4 gene receptor producing mass amounts of IgE and an increase in IgE in helminth may be due to the worm inducing a Th2 response.
Mast cells play a big role in both asthma and helminths and this is due to both the conditions causing a dominant Th2 response. As mentioned earlier, both conditions witness a dramatic increase in levels of IgE which is what causes degranulation of the mast cells releasing many products and cytokines which have their effect in both asthma and helminth.