ART 45 TFEU: FREE MOVEMENT OF WORKERS

  • 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.

Criterion

  • 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:
    1. Temporary incapacitation through illness/accident
    2. Involuntarily unemployed after being employed for >1 year, and registered as job seeker
    3. 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
    4. Embarking on vocational training (should be related to previous employment)
  • CRD basically confirms and extends ECJ case law

How about horizontal direct effect?

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.

 

Part 2 of legal tender

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:
      1. Jurisdictional divide between EU and domestic law.
      2. “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.

 

FREE MOVEMENT OF PERSONS

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NTRODUCTION

  • 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

Personal scope

  • 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?