Free Movement Of Persons 1 Entry Residence Notes

EU Law: Free Movement of Persons 1 - Entry and Residence

Free movement of persons--history

• Original EEC treaty, Treaty of Rome 1957: free movement of persons applied only to the ‘economically active’ (i.e. workers and self-employed persons).

• Reg 1612/68 (now Reg 492/2011) provided specific employment, social and educational rights to workers; and certain family members limited rights.

• Early 1990s, extended the scope of persons beyond ‘economically active’. Directive 90/364 (those with sufficient resources and sickness insurance); Directive 90/365 (retired previous previously employees or self-employed); Direct 93/96 (students).

• Workers: This now provided for by Article 45 TFEU—freedom of movement for workers.

• Union Citizens: 1992 new concept, found in Maastricht treaty, of a ‘union Citizen’. Art 8 TEU (now Articles 20 & 21 TFEU.) Union citizen = all individuals holding nationality of one of the MSs. So need to be economically active—changed dynamics of free movement of persons.

• Directive 2004/38 (‘Citizenship Directive’): rules governing free movement of persons. A single directive. Include: detailed rules for rights of entry and residence for Union citizens; elimination of need for Union citizens to obtain a residence card; introduction of a permanent right of residence; greater safeguards for fam members.

• NB Schengen Agreement: abolished internal border controls amongst the signatory MSs, and introduced common visa controls (UK and Ireland not included). Now incorporated into the Treaty of Amsterdam. UK nad Ireland excluded.

• SO, Art 45 TFEU—workers (economically active); Art 20 TFEU – Union citizens (no need to be econ active).

Article 45 TFEU: Free movement of Workers

• Workers who are nationals of a MS

• Four paras, Art 45 TFEU:

  1. Free movement of workers shall be secured (basic right of movement).

  2. Non-discrimination in Employment rights: abolition of discrimination based on nationality between workers of MSs regarding employment, remuneration and conditions of work.

  3. Derogations and specific rights.

     • Limitations justified on grounds of public policy, public security, public health.

     • Rights granted, subject to these limitations: To accept offers of employment; to move freely within territory of MS for this purpose; to stay in a MS for purpose of employment in accordance with the provisions governing the employment of nationals in that State; to remain in the MS after having been employed in that State.

  4. Public service exemption (no right for public service worker).

• Non-discrimination: Article 45 represents an application, in the specific context of workers, of the general principle in Art 18 TFEU that prohibits any discrimination on basis of nationality.

• Art 45 supplemented by secondary legislation:

  • Regulation 492/2011: confers rights of equal treatment relating to employment, tax and social advantages and access to education, that can be enjoyed by workers & fam members. It replaced Reg 1612/68 and other regs.

  • Directive 2004/38: deals with rights of entry & residence of Union citizens (including workers) and fam members.

  • Secondary legislation buildings upon framework established in Treaties, by conferring additional rights on workers and families.

Economic activities and the scope of Art 45 TFEU

• Scope of Art 45 TFEU interpreted by ECJ by reference to objectives of the EEC originally listed in Art 2 Treaty of Rome. One was promotion of a harmonious development of economic activities.

• So ECJ has long held that Art 45 TFEU applies only in relation to economic activities

• But interpreted broadly.

• Walrave & Koch v Association Union Cycliste Internationale (1974)

  • Worker = (1) Economic activity; (2) having character of gainful employment.

  • In this case, ECJ held the practice of sport is subject to Art 45 (but only in so far as it constitutes an economic activity having character of gainful employment).

  • Concerned 2 Dutch nationals, who acted as professional pace makers in motor-paced cycle races. They sought to challenge the rules of the international body regulating such races, on grounds that the rules for the composition of teams discriminated on basis of nationality.

  • ECJ held: Art 45 TFEU applies to rules of an international sporting federation which were aimed at regulating gainful employment.

• Likewise, other professional sports held to apply—activities of professional and semi-professional footballers in gainful employment, held to fall within Art 45 TFEU:

  • Union Royal Belge des Societes de Football Association ASBL v Jean Marc Bosman (1995).

• What is a ‘Worker’—a Union definition (Hoekstra)

  • To obtain full rights under Art 45 TFEU and Reg 492/2011, an individual has to be both a national of a MS and a ‘worker’.

  • Treaties never defined ‘worker’.

  • Hoekstra v Bestuur (1964): held that there is to be an EU meaning of worker. Worker will be given an EU meaning, will have its own definition under EU law—whether a person is a worker or not was not to be defined by national law. So consistent definition across MSs.

• Walrave & Koch: (1) economic activity; (2) having character of gainful employment.

• (2) An ‘employment relationship’: ‘having character of gainful employment’ (Walrave & Koch)

  • Lawrie-Blum v Land Baden-Wurttemberg (1986) (re trainee teacher in Germany, 11 hrs/week): defines ‘employment relationship’ as:

  • (1) performs service; (2) for and under the direction of another; (3) in return for remuneration.

  • In this case, a British national who went to Germany to train to be a teacher. Passed her teaching exam, and was refused admission to the preparatory service stage of training on ground that she was not a German national. That preparatory service would have involved 11 hours a week teaching at a secondary school, for which she would have been paid.

  • German law only allowed German nationals to do that training; and German authorities denied that a trainee teacher is a worker, but engaged in educational activity not economic activity.

  • ECJ: a...

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