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EU Law: Free Movement of Persons 2 - Employment, Social &
Education Rights Employment Rights The legislation---Art 45(2) TFEU and Reg 492/2011
? Art 45(2) TFEU: o "[Freedom of movement for workers] shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment."
? Art 45(3)(a): the freedom also entails the right of nationals of MSs to' accept offers of employment actually made'.
? Art 45 provides foundational right;
?????More details rules in Chapter I, Reg 492/2011 o Section 1 (Arts 1-6) deals with issues relating to the eligibility for employment and access to employment. o Section 2 (Arts 7-10) deals with equality of treatment issues once a worker is in employment. o Art 3: deals with applications for and offers of employment o Art 7: discrimination once in employment. ECJ interpretations of employment rights in above legislation, interpreted widely
? 1. Direct discrimination o Where workers from other MSs are overtly treated less favourably than nationals of host MS. o Prohibited, never justified--, Commission v France (French Merchant Seamen, re French merchant ration of 3:1 & reserved certain positions.): o A French ministerial order which imposed an overall ratio of 3 French to 1 foreign national on ships of the merchant fleet; and reserved certain positions only to French nationals. o ECJ: right to free movement of workers extended to sea transport. The ministerial order breached Art 45 TFEU and Art 4 of Regulation 492/2011. o Direct discrimination can never be justified.
? 2. Indirect Discrimination (can be justified) o When a rule is neutral in terms of nationality; but in practice affects non-national workers more severely than nationals. o Prohibited---Wurttembergische v Ugliola (1970), re military service, West Germany: o An Italian who had interrupted his employment in West Germany to fulfil his obligation as an Italian citizen to undertake compulsory military service. He then resumed his employment with same employer in West Germany. He
1 o o o o
wanted his period of military service to be taken into account in determining his seniority with his employer. West German law provided for the period of military service to be taken into account in calculating the duration of a worker's employment, but this only applied to workers who undertook military service in the West German military, irrespective of their nationality. ECJ: this breached Art 45 TFEU as it indirectly discriminated against workers from other MSs who undertook military service in their country of origin. Unless objectively justified on public interest grounds: Sotgiu v Deutsche Bundespost (1974), re German postal service separation payment, distinction on grounds of residence: Workers in West German Federal Postal Service received a separate allowance they employed away from home. This was increased by more for workers whose place of residence was Germany than those with place of residence abroad. Sotgiu was an Italian national, who was only entitled to the smaller increase. ECJ: repeated that EU law prohibits indirect discrimination. But, considered the distinction drawn on the basis of place of residence to be objectively justifiable: payments to workers who were resident in Germany were temporary as they were required to move to their place of employment. Workers who retained their residence abroad were not required to move, and so their allowance was expected to continue indefinitely. Groener, re Irish language requirement, applying Art 3(1) 'linguistic knowledge', expressing national identity/culture Art 3 (1) of Reg 492/2011 expressly provides one ground for justifying discrimination---linguistic knowledge: this applies to the prohibition of discrimination in respect of applications and offers for employment; but qualifies the prohibition: it shall not apply to conditions relating to the linguistic knowledge required by reason of the nature of the post to be filled. Linguist knowledge exception applied in Groener v Ministry for Education (1989): A Dutch national, engaged in temporary part-time lecturer work at a college in Ireland. Had applied for a permanent position which would be taught exclusively in English. Minister for Education refused to point her as she didn't have the certificate of proficiency in the Irish language. This proficiency requirement applied to anyone applying for a permanent fulltime post as a teacher in certain areas, regardless of nationality. [[so this was indirect discrimination]].
2 ?o ECJ held: the language condition was required by reason of the nature of the post to be filled, as it formed part of a policy of promoting Irish gaelic, one of the official national languages of Ireland, as a means of expressing national identity & culture.
3. Non-discriminatory obstacles to accessing the employment market Prohibition extended to indistinctly applicable measures which, whilst non-discriminatory, nonetheless impede access to the employment market [i.e. do not discriminate on basis of nationality, but nonetheless impede access to the employment market] [[can be justified if 'pressing reason in public interest' (Kraus; Bosman)]]
o Extended application of Art 45 TFEU further. o To prohibit measures which impede access to the employment market, without being either directly or indirectly discriminatory on basis of nationality. o Prohibited unless objectively justified -(1) pursued a legitimate objective compatible with Treaty; (2) justified by 'pressing reason of public interest'; (3) proportionate (Kraus; Bosman). o Kraus v Land Baden-Wurttember (1993), re German requirement of authorisation for use academic title obtain abroad: o re a legal requirement in Germany that a person must obtain authorisation from the relevant German federal state before he/she could use an academic title obtained in a foreign higher education establishment. The requirement applied irrespective of nationality. o Case brought by a German student who had obtained an LLM from Uni of Edinburgh, and having returned to Germany, had refused to make a formal application for authorisation to use the academic title in Germany. o ECJ held: the activities of the EC included abolition of obstacles to free movement of persons. The possession of an academic title may be such an obstacle, as it may be a prerequisite for entry into a profession; and if not a pre-requisite, may still be advantageous to the holder. Hence a national measure governing the conditions under which an academic title obtained in another MS may be used would be prohibited, in so far as it is liable to hamper or render less attractive the exercise by Community nationals, including those of the MS which enacted the measures, of the free movement of workers, even if the measures is applicable without discrimination on grounds of nationality.
? Unless objectively justified
? Kraus: ECJ went on to rule that such a measure (about obtaining authorisation to use an academic title 3
obtained abroad) could be justified if it pursued a legitimate objective compatible with the Treaty, and was justified by 'pressing reasons of public interest'.
? In this case, the measure was justified, by need to prevent the misleading use of academic titles---so long as was proportionate. o Leading case now is Union Royal Belge des Societes de Football Association ASBL v Bosman (1995), re football transfer fee---any impediment is caught, unless objectively justified]: o [[Bosman makes same point for free movement of persons a Dassonville made for free movement of goods---any impediment, discriminatory or indiscriminatory, is caught]]. o Bosman a Belgian footballer. Wished to transfer to a French club. Under transfer system of football associations, his own club wouldn't release him without payment of a transfer fee by the club wishing to engage him. o This was a standard rule amongst football associations in Europe, and did not discriminate directly or indirectly against non-nationals. It also didn't discriminate against players transferring internally or those going abroad. o ECJ held: the transfer rules still directly affected players' access to the employment market in other MSs and so were capable of impeding the freedom of movement for workers. Hence they constituted an obstacle to freedom of movement of workers prohibited by Article 45. So indiscriminatory measures still apply, are still caught and thus prohibited.
? Again, ECJ stated, exception if the rules pursued a legitimate aim compatible with the Treaty, and was justified by pressing reasons of public interest.
? And must be proportionate: application of the rules would have to be sure as to ensure the achievement of the aim in question; and not go beyond what is necessary for that purpose. So direct discrimination can never be justified; whereas both (2---indirect discrimination measures)) and (3---nondiscriminatory obstacles) can be justified on objective public interest grounds: o For indirect discrimination, justified objectively (Sotgiu; Groener). o For non-discriminatory obstacles (Kraus; Bosman)
? Pursued legitimate objective compatible with Treaty
? 'pressing needs of public interest' (Kraus; Bosman).
? Restrictions have to be proportionate.
4 Right of family members of Union citizens to take up employment
? ?? ? Art 23 Directive 2004/38: irrespective of nationality (EU or nonEU), right of family members of a Union citizen to take up employment or self-employment in a MS where they have right of residence or right of permanent residence. o This applies to fam members 'irrespective of nationality', so even non-EU nationals are entitled to work in EU if fam members of a Union citizen'.
? ?? ? A fam member exercising the right to work under Art 23, should also be able to benefit from the other rights governing eligibility for employment and the conditions enjoyed by workers. This follows from . . . o Gul v Regierungsprasident Dusseldorf (1986), re a Turkish Cypriot married to British woman, living in Germany---
as a non-EU spouse of a MS national, he had same rights to employment & conditions as a worker under Reg 492/2011: o Concerned a Turkish Cypriot doctor living in Germany with his British wife. His wife worked as a hairdresser. He had been given temporary authorisation to practice medicine but his application to renew this was refused. o ECJ interpreted the predecessor of Art 23, as providing the spouse of a national of a MS, with the right to employment on the same conditions of a worker, under what is now Reg 492/2011---and subject to the same rules governing access to, and the pursuit of the occupation, as nationals of the host MS. o So follows that fam members are also entitled to the employment rights provided by Reg 492/2011. o So in this case, claimant was able to rely on Art 3(1) of Reg 492/2011.
Focus on rights to social assistance and other such benefits. Basic right to social assistance comes from 2 sources: o WORKER--Art 7(2), Reg 492/2011: provides workers with right to same social benefits & tax advantages as national workers of host MS. o UNION CITIZEN--Art 20 TFEU read with Art 18 TFEU: ECJ has held that this provides Union citizens with a right to social assistance, and other social rights, on same basis of nationals of the host MS.
1. WORKERS (and their family members)--Art 7(2) Reg 194/2011--gives workers right to same social benefits as nationals
5 ????"[A worker who is a national of a Member State] shall enjoy the same social and tax advantages as national workers." Concept of a 'social advantage'---basically means 'social benefits'. Basically, requires that migrant workers who are members of other MSs, must not be discriminated against on grounds of nationality CF nationals, with regards to social and tax benefits. This right, under Art 7(2), does not extend to job seekers (Collins v Sec of State for Work and Pensions (2004): jobseeker not a 'worker' for purposes of Art 7(2). What is a 'social advantage'?
But, as long as is a worker, the social advantages does not have to be part of the contract of employment (Cristini v SNCF): o Cristini: 'all social and tax advantages, whether or not attached to the contract of employment, such as reductions in fares for large families'. Social advantages have been taken to include: o Discretionary childbirth loans (Reina v Landeskreditbank Baden-Wurttemberg). o Minimum income allowance (Hoeckx v Centre Public d'Aide Sociale de Kalmthout. o The right of a non-national who lives with a national in a stable relationship to reside in the host State if that is available to national workers: see Reed (above). o Funeral expenses benefit (O'Flynn v Aducation Officer). But, the social advantages must be granted to workers, primarily because of (1) their status as workers, or (2) by virtue of residence on the national territory (Even), re Belgium pension re WW2 veterans, not granted primarily due to being workers or residents, but instead due to hardship suffered in service during war. o Ministere Public v Even (1979) o ECJ: 'social advantages' confined to those granted to workers primarily because (1) their objective status as workers; OR (2) by virtue of mere fact of their residence in the national territory. o In this case: Did not extend to a pension benefit granted by Belgium to Belgium nationals who had been injured during service with allied forces in ww2. Case brought by a French national resident in Belgium, receiving early retirement pension. Early retirement pensions were paid at a rate which was reduced for each year of early retirement; unless the recipient was a Belgian national who had served with Allied Forces in WW2; and was also in receipt of a war service invalidity pension from an allied nation for incapacity to work attributable to an act of war. o The only reason the claimant could not benefit from this exception was that he was not Belgian. 6
o ECJ: Art 7(2) did not extend to the benefit claimed here
---as the pension benefit was granted for the hardship they had suffered in service to their own country during the war; was not granted primarily due to their status as workers, or as residents of the national territory. Members of worker's family can also qualify under Art 7(2)---
Cristini and Inzirillo o Members of a worker's family can indirectly qualify for right under Art 7(2). o Cristini v SNCF (1975), re reduction in train fares, because the social advantaged enjoyed by the worker operated in favour of his fam members: o Case concerned the widow of an Italian national who had been working in France. French law provided large families (> 3 children under 18 years of age) with right to cards entitling them to reduction in fares in state rail company. Cards available at request of 'head of household' (i.e. basically meant a male worker). But head of household, her husband, had died. The fare reduction cards were only available to French nationals. o So the social advantage enjoyed by the worker here (rail fare reductions for large families) operated in favour of his family members. o ECJ held: Art 7(2) provided the Italian widow, and her Italian children, with a right to the cards on the same basis as French nationals, providing her husband had applied for them before his death. So in this case of Cristini, the fam members benefitted from the worker being entitled to the social advantage under Art 7(2). ECJ went one step further in case of Inzirillo v Caisse d'Allocations Familiales (1976) o The right under Art 7(2) was held to extend to a social advantage which the family member alone (i.e. not the worker himself) qualified for, re allowance for disabled son. o In this case: a French law which provided for a disability allowance. This was only available to French nationals. An Italian nation, who lived and worked in France, had applied for this disability allowance on behalf of his disabled son, who was also Italian. Application was refused on grounds that his son was not French. o ECJ held: the disabled son of an Italian worker in France was entitled to the disability allowance, Even though the son had never worked.
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