Free Movement of Free Movement of Workers Workers in thein the EU EU

ProfProf.dr.sc. Iris Goldner Lang.dr.sc. Iris Goldner Lang

Faculty of Law, University of ZagrebFaculty of Law, University of Zagreb

IntroductionIntroduction

EU internal market – 4 freedoms:- Goods- Workers - Services- Capital

Prohibition of national measures which Prohibition of national measures which hinder or make less attractive the exercise hinder or make less attractive the exercise of that right, no matter whether they are of that right, no matter whether they are discriminatory or non-discriminatory (the discriminatory or non-discriminatory (the measure remains in case it can be justified measure remains in case it can be justified and it is proportionate)and it is proportionate)

Cross-border element

Free Movement of Workers (Free Movement of Workers (Art.Art. 45-48 45-48 TFEUTFEU))

Art. Art. 4545 TFEUTFEU::(1)(1) Freedom of movement for workers shall be secured Freedom of movement for workers shall be secured

within the within the UnionUnion..(2)(2) Such freedom shall entail the abolition of any Such freedom shall entail the abolition of any

discrimination based on nationalitydiscrimination based on nationality between workers between workers of the Member States as regards of the Member States as regards employment, employment, remuneration and other conditions of work and remuneration and other conditions of work and employmentemployment. .

Economic Economic ↔ social aspect of free movement of ↔ social aspect of free movement of workersworkers

Are TCNs encompassed by Art. Are TCNs encompassed by Art. 4545(1) (1) TFEUTFEU?? Territorial scope of Art. Territorial scope of Art. 4545(1) (1) TFEUTFEU Vertical and horizontal direct effect of Art. Vertical and horizontal direct effect of Art. 45TFEU45TFEU

(36/74 (36/74 Walrave & KochWalrave & Koch, C-415/93, C-415/93 Bosman, Bosman, C-281/98 C-281/98 AngoneseAngonese))

Direct discrimination (nationality)/ indirect Direct discrimination (nationality)/ indirect discriminationdiscrimination

Art. Art. 45 TFEU 45 TFEU (cont.)(cont.)Scope of Free Movement of WorkersScope of Free Movement of Workers

(3) It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;(b) to move freely within the territory of Member States for

this purpose;(c) to stay in a Member State for the purpose of

employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

Non-exhaustive list – Art. Non-exhaustive list – Art. 4545(3) (3) TFEUTFEU encompasses encompasses the right to move to another MS for the purpose of the right to move to another MS for the purpose of searching for employment – min 3 months (C-292/89 searching for employment – min 3 months (C-292/89 AntonissenAntonissen))

Meaning of the Term “Worker”Meaning of the Term “Worker”

The meaning of the term “worker” is not defined The meaning of the term “worker” is not defined by the Treaty and secondary legislation, but CJ’s by the Treaty and secondary legislation, but CJ’s case-law – broad meaningcase-law – broad meaning

Defining the term “worker” is within the Defining the term “worker” is within the competence of the competence of the UnionUnion(75/63 Hoekstra (née Unger), parag. 1)(75/63 Hoekstra (née Unger), parag. 1)Articles 48 [Articles 48 [4545] to 51 [] to 51 [4848] of the Treaty by the ] of the Treaty by the very fact of establishing freedom of movement for very fact of establishing freedom of movement for “workers” have given Community scope to this “workers” have given Community scope to this term. term. IfIf the definition of this term were a matter the definition of this term were a matter within the competence of national law, it would within the competence of national law, it would therefore be possible for each Member State to therefore be possible for each Member State to modify the meaning of the concept of “migrant modify the meaning of the concept of “migrant worker” and to eliminate at will the protection worker” and to eliminate at will the protection afforded by the Treaty to certain categories of afforded by the Treaty to certain categories of persons.persons.

Meaning of the Term “Worker” (cont.)Meaning of the Term “Worker” (cont.) Lawrie-BlumLawrie-Blum (66/85): “The essential feature of (66/85): “The essential feature of

an employment relationship is that a person an employment relationship is that a person performs performs services of some economic valueservices of some economic value for for and and under the direction of another personunder the direction of another person in in return for which he receives return for which he receives remunerationremuneration.”.”

LevinLevin (53/81): no matter whether full-time or (53/81): no matter whether full-time or part-time – “effective and genuine activities to part-time – “effective and genuine activities to the exclusion of activities on such a small scale the exclusion of activities on such a small scale as to be regarded as purely marginal and as to be regarded as purely marginal and ancillary”; the motives are of no accountancillary”; the motives are of no account

KempfKempf (139/85): irrelevant whether the means (139/85): irrelevant whether the means of subsistence are obtained from the public of subsistence are obtained from the public fundsfunds

SteymannSteymann (196/87): irrelevant whether paid in (196/87): irrelevant whether paid in kindkind

Exceptions:Exceptions:BettrayBettray (344/87); Trojani (456/02) (344/87); Trojani (456/02)

LimitationsLimitations

Van DuynVan Duyn (41/74): broad (41/74): broad interpretation of the ECJinterpretation of the ECJ

Bonsignore (67/74): personal conduct Bonsignore (67/74): personal conduct and not considerations of general and not considerations of general preventionprevention

BouchereauBouchereau (30/77): personal conduct (30/77): personal conduct of the individual concerned represents of the individual concerned represents a genuine, present and sufficiently a genuine, present and sufficiently serious threat affecting one of serious threat affecting one of fundamental interests of the societyfundamental interests of the society

AdouiAdoui (115,116/81): the state is taking (115,116/81): the state is taking measures against such activitiesmeasures against such activities

Art. 27 of Directive 2004/38 on the Art. 27 of Directive 2004/38 on the right of the Union citizens and their right of the Union citizens and their family members to move and reside family members to move and reside

freely within the territory of thefreely within the territory of the MSsMSs

(1) Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.(2) Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

Public Service as an ExceptionPublic Service as an Exception

(4)(4) The provisions of this article shall not apply to employment in the public service.

Public service and the realisation of Public service and the realisation of MSsMSs’ ’ sovereigntysovereignty

C-149/79 C-149/79 Commission v. Belgium Commission v. Belgium (No. 1)(No. 1)

1. exercise of powers conferred by public law 1. exercise of powers conferred by public law ANDAND

2. duties designed to safeguard the general 2. duties designed to safeguard the general interests of the state or of other public interests of the state or of other public authoritiesauthorities

Restrictive interpretation of the CJRestrictive interpretation of the CJ In case of employment → non-discriminationIn case of employment → non-discrimination

Public Service as an ExceptionPublic Service as an Exception (cont.) (cont.) Commission document of the scope of Art. Commission document of the scope of Art. 4545(4)(4)

TFEUTFEU (OJ C72/2, 1988): (OJ C72/2, 1988):- Posts outside the meaning of public service: Posts outside the meaning of public service: commerical commerical

services, public health services, teaching,services, public health services, teaching, non-military non-military reserachreserach

- Posts within the meaning of public service: Posts within the meaning of public service: police and police and other forces of order, other forces of order, armed forces, judiciary, tax armed forces, judiciary, tax authoritiesauthorities, diplomatic service, diplomatic service

Commission Communication COM(2002) 694 finalCommission Communication COM(2002) 694 final- ““not all posts in these fields imply the exercise of public not all posts in these fields imply the exercise of public

authorityauthority ( (administrative tasks; technical consultation; administrative tasks; technical consultation; maintenancemaintenance)”)”

-- ““posts in State ministries, regional government posts in State ministries, regional government authorities, local authorities,authorities, local authorities, central banks and other central banks and other public bodies, which deal with the preparation of legal public bodies, which deal with the preparation of legal actsacts - - stricter approach than 1988stricter approach than 1988

Family reunificationFamily reunification

((1)1) Who are family members: Art. 2 i 3 of Who are family members: Art. 2 i 3 of Directive 2004/38 on the right of the Union Directive 2004/38 on the right of the Union citizens and their family members to move and citizens and their family members to move and reside freely within the territory of the MSsreside freely within the territory of the MSs

(2)(2) Whose family members Whose family members(3) Family link and cross-border situa(3) Family link and cross-border situattions (≠ ions (≠

internal situations) :internal situations) : DiattaDiatta (267/83) (267/83) Surinder SinghSurinder Singh (370/90) (370/90) CarpenterCarpenter (C-60/00) (C-60/00) AkrichAkrich (C-109/01) (C-109/01) MetockMetock (C-127/08 (C-127/08)) AG Sharpston in AG Sharpston in Ruiz Zambrano Ruiz Zambrano (C-34/09)(C-34/09)

Post-Accession Transitional PeriodsPost-Accession Transitional Periods

Established practice at the time of the accession of Established practice at the time of the accession of Spain and Portugal and 10 Spain and Portugal and 10 CEECCEEC in 2004 and 2007 in 2004 and 2007

Enlargement waves 2004/2007: max 7 years Enlargement waves 2004/2007: max 7 years transitional period – 2+3+2 transitional period – 2+3+2

2004: UK, Ireland and Sweden did not apply transitional 2004: UK, Ireland and Sweden did not apply transitional periods (12 out of 15 old MSs decided to apply TPs)periods (12 out of 15 old MSs decided to apply TPs)

At the moment, At the moment, 1313 out of 15 old MSs have opened out of 15 old MSs have opened labour market to workers from 2004 enlargement labour market to workers from 2004 enlargement countriescountries (Germany and Austria continue to apply (Germany and Austria continue to apply national measures: UK Workers’ Registration Scheme – national measures: UK Workers’ Registration Scheme – max until 30/04/2011)max until 30/04/2011)

By now 15By now 15 ou outt of 25 MSs opened their labour market of 25 MSs opened their labour market for workers from Bulgaria and Romaniafor workers from Bulgaria and Romania

Out of 8 CEEC that acceded to the EU in 2004, 3 Out of 8 CEEC that acceded to the EU in 2004, 3 decided to apply reciprocity to the old 15 MSs decided to apply reciprocity to the old 15 MSs (Hungary, Poland and Slovenia)(Hungary, Poland and Slovenia); ; Bulgaria and Romania Bulgaria and Romania do not apply reciprocitydo not apply reciprocity

Post-Accession Transitional Post-Accession Transitional PeriodsPeriods (cont.) (cont.)

Reasons for transitional periods: Economic? Reasons for transitional periods: Economic? Psychological? Political? (“first-class”, Psychological? Political? (“first-class”, “second-class” citizenship; associating the “second-class” citizenship; associating the EU with free movement for the purpose of EU with free movement for the purpose of work, study and travel)work, study and travel)

Are transitional periods necessary and Are transitional periods necessary and justified? justified?

Effects of liberalising labour market for Effects of liberalising labour market for workers from new Member Statesworkers from new Member Statesa) Cheap labour (also posted workers)a) Cheap labour (also posted workers)b) Significant economic and social benefitsb) Significant economic and social benefitsb) Brain drain/ youth drain, particularly b) Brain drain/ youth drain, particularly certain sectorscertain sectors