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FREE MOVEMENT OF PERSONS Abbreviations: ECJ European Court of justice MSs Member states (of the EU) EP European Parliament CFSP Common Foreign and Security Policy TEU Treaty on EU (Maastricht) TFEU Treaty on the Functioning of the EU (Rome) EEC Treaty Treaty establishing the Economic European Community DE Direct effect CRD Citizens' Rights Directive TCN Third Country National
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?
Material and territorial scope
Need an inter-state element:
Indiv must move from one MS to another, or service being provided must move across borders.
Might be frontier working retaining residence in home state, but working in host state.
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. 1
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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 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.
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.
Viking, 2007: ECJ held that art 49 could be employed against trade union association, seeming to draw analogy with professional regulatory bodies.
ART 45 TFEU: FREE MOVEMENT OF WORKERS General
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
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provided for transitional arrangements, allowing old MSs to decide whether to allow free movement of labour without restriction. In Reg 1612/68, 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: a. Temporary incapacitation through illness/accident b. Involuntarily unemployed after being employed for >1 year, and registered as job seeker c. 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 d. Embarking on vocational training (should be related to previous employment)
CRD basically confirms and extends ECJ case law
What rights do workers have?
*Main treaty provisions in TFEU:
Art 45(1): right of free movement
Art 45(2): includes abolition of any nationality-based discrimination
Art 45(3): further components of the right Expanded by 3 secondary measures:
1. Directive 68/360 on rights of entry and residence
2. Reg 1612/68 on free movement of workers
3. Reg 1251/70 on right to remain Today, (1) and (3) have been replaced by CRD 2004/38.
2 stages: right of access to employment without discrimination, and right to equal treatment while in that job.
Stage one: access to employment:
Instances of direct discrimination:
Bosman, 1995: Belgian football player's contract expired. He wanted to go to French club, but latter refused to pay Belgian club's transfer fee. ECJ held that rule requiring 3
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each first division team to field at least 3 foreign players and 2 acclimatised foreign players in domestic league matches contravened art 2.
Comm v Italy, 2001: rule that private security work could only be carried out by Italian security firms employing Italian nationals was discriminatory.
French Merchant Seamen case: French rule requiring 3:1 French to non-French seamen contravened art 4(1).
Reg 1612/68 seeks to eliminate other directly discriminatory barriers:
Art 4(1): national provisions restricting employment of foreign nationals in any undertaking will not apply to nationals of other MSs.
Art 4(2): if there is requirement for undertaking to employ min percentage of nat workers, nationals of other MSs will count as nat workers.
Art 6: prevents recruitment on criteria which is discriminatory on grounds of nationality.
Instances of indirect discrimination:
Art 3(1) confirms case law - looking at effect of measure.
Collins, 2004: UK rule that jobseeker's allowance was conditional on being habitually resident in UK was indirectly discriminatory.
Groener v Minister for Education, 1989: Dutch woman refused permanent post in Dublin college cos she didn't speak Gaelic.
but held to be justified: part of govt policy promoting use of Gaelic as means of expressing national culture and identity.
Cf Angonese, 2000: Italian bank requiring bilingualism certificate obtainable only from local authority was indirectly discriminatory. Justified by job requirements, but disproportionate not to allow other means of proof of bilingualism. Stage two: equal treatment during employment relationship itself
Terms and conditions of employment:
Art 7(1) Reg 1612/68: migrant worker must not be treated differently for any conditions of employment/work.
Art 7(3): clauses of contract of employment which are discriminatory against workers from other MSs will be null and void.
Most case law is on indirectly discriminatory measures.
Allue and Coonan, 1989: Italian law limited duration of contract of employment of foreign language assistants, most of whom were nationals of other MSs. Couldn't be justified!
Clean Car, 1989: Austrian rule required business managers to be resident in Austria breached art 45. Majority of non-residents were foreigners, hence indirectly discriminatory. Not justified cos not proportionate step for business effectiveness (even if need to serve fines, can do so at company's registered office).
Art 7(2) Reg: worker to get same social and tax advantages as national workers.
But sensitive area of national competence! Mss enjoy fiscal autonomy, and direct taxation is still a fundamental part of national sovereignty. Under EU law, residence becomes a suspect ground of differential treatment, but international tax law adopts residence as a legitimate ground of differentiation!
Initially, ECJ saw national tax policies as unlawful restrictions on free movement. But in the key decisions of Halsey, 2005 and FII, 2006, there was a turning point. ECJ considered realities of international tax law and accepted that differential treatment of residents and non-residents was legitimate.
Also mentioned in art 7(2) Reg.
Criminal Proceedings against Even, 1979: "social advantages" defined broadly to include all benefits, whether or not linked to the contract of employment, granted to national workers primarily because of their objective status as workers/by mere fact of their residence on national territory
Talking about benefits which, if extended to migrant workers, will facilitate their mobility or assist in integration into host state.
Hartmann, 2007: Austrian wife of German worker, both resident in Austria while latter worked in Germany, could claim German child raising allowance. 4
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Hendrix, 2007: ECJ held that incapacity benefit payable to young people in Netherlands, though considered a non-exportable social security arrangement under the Social Security Reg 1408/71, was still a social advantage. Hence, residence requirement was unlawful indirect discrimination which had to be justified.
Effectively reversing standard presumption of legality of territoriality of social welfare benefits.
Now, MS' refusal to allow export of benefits will be presumptively unlawful.
Dougan criticises this seeing it as ECJ using purely legal tools to infringe on power of political institutions to decide matters of social policy.
Family members: even migrant workers' families can enjoy social advantages.
Confirmed by art 24(1) CRD: right of equal treatment is extended to family of nonnationals who have right of residence/permanent residence.
Christini v SNCF, 1975: French rail scheme allowed for fare reduction for large families. Italian mother resident in France, and husband had worked there before death, was refused reduction cos of nationality. ECJ held art 7(2) Reg 1612/68 was NOT limited to advantages connected with the contract of employment. Instead, it was aimed to achieve equality of treatment, whether or not worker was still alive. Limits to the scope of art 7(2)
Crim Proceedings against Even: Belgian rules allowed retirement pension to start up to 5 years before normal pension age of 65, subject to reduction for early payment. But this reduction was not applied to Belgians who had fought for country during WWII.
ECJ held this was NOT social advantage - essential objective was to give nationals advantage due to hardships suffered for country. Equal treatment and vocational training (art 7(3))
Gravier, 1985: vocational training defined broadly to include any form of education preparing indiv for qualification/providing necessary training or skills for a particular trade or profession.
Note that while Gravier was a case about fees, maintenance grants are different - can constitute "social advantage" under art 7(3).
Lair, 1988: French woman had moved to Germany and worked a few part-time contracts, before seeking maintenance grant to study languages at German uni. ECJ held those who had previously pursued effective and genuine activity could still be considered workers, hence get maintenance grant under art 7(2), but must have link between previous occupational activity and the studies pursued.
Today, reflected in art 7(3)(d) CRD.
But note art 24(2) CRD: no need for host state to pay maintenance aid for studies before acquisition of permanent residence.
Bidar, 2005: B was French national living in UK for a long time. Studied at UCL, and got assistance for tuition fees (after Gravier), but application for maintenance grant was refused due to lack of "settled" status, which was impossible for students to attain.
ECJ held that B, being lawfully resident in UK, was entitled to equal treatment under art 18 TFEU, for social assistance benefits.
These benefits include assistance with maintenance costs. Confirmed by art 24 CRD.
Rules here were indistinctly discriminatory.
But while MSs are required to show a certain degree of financial solidarity with other MSs' nationals, it was legitimate for MSs to require a certain degree of social integration before granting assistance.
Hence, 3 years residence requirement was fine, but not the requirement of settled status. Equal treatment and other benefits (art 8(1))
Regarding rights of trade union membership/related rights.
But MSs can exclude migrant workers from taking part in management bodies governed by public law/holding office governed by public law
Comm v Austria (Workers' Chambers), 2004: law excluding all non-Austrians from standing for election to workers' chambers was still incompatible, as public law
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