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  1. Advanced EU law Prof. MassimilianoMontini European Internal Market: Free movement of workers Lecture 10, 25-11-2013

  2. Free movement of workers • Article 45 TFEU deals with freedom of circulation of WORKERS and lists workers’ rights • it refers to ‘employed workers (employees)’ • Article 49 TFEU deals with freedom of establishment • it refers to ‘self-employed workers’

  3. Art. 45 TFEU • Freedom of movement for workers shall be secured within the Union. 2) Such freedom of movement 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.

  4. Art. 45.3 TFEU: workers’rights 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 regulations to be drawn up by the Commission.

  5. The definition of ‘worker’ • The notion of ‘worker’ of the Treaty refers to ‘employed workers’ (employees), as also indicated in Regulation No.1612/68 (now Reg. 492/2011) in order to avoid different interpretations among the Member States • The Court of Justice widely contributed to shape this notion through its case-law

  6. The definition of ‘worker’ by the Court • Case Martinez Sala, C-85/96 (1998) (point 32) • Case Rundgren, C-389/99 (2001) (point 32) ‘a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker ‘

  7. Condition for the application of art.45 TFEU (1) • Firstly, a worker must hold the European citizenship (citizenship of a Member State) • In the case of citizens coming from new EU Member States, Member States may apply limitations to their free movement for a period up to 7 years • Third countries’ nationals are not entitled to free movement within the EU, unless specific agreements on this issue are concluded between the Union and third countries (E.g.: Association Agreement between Turkey and the EU)

  8. Condition for the application of art.45 TFEU (2) • Secondly, in order to apply art. 45 TFEU, the activity has to or will be performed within the territory of a Member State which is not the country of origin of the worker • When a worker receives a less favourable treatment in his own State because he has previously worked in another Member State, that worker can claim his/her rights connected to free circulation against his/her State • When a worker is affected by a discriminatory treatment in his/her Member State, this situation is defined ‘reverse discrimination’ • Art. 45 TFEU does not apply to situations dealing with ‘reverse discrimination’

  9. Condition for the application of art.45 TFEU (3) • Third condition to apply art. 45 TFEU is that the activity must fall within the category of ‘employment activities’ • This condition occurs when a person works for a certain period of time for and under the direction of another person, for which he receives a remuneration • 2 elements: working-time requirement and remuneration (minimum-income) • However, the Court established that any person who pursues ‘effective’ and ‘genuine’ activities is treated as a ‘worker’ (cases: Meeusen C-337/97; Levin 53/81) • Only ancillary and purely marginal activities are excluded

  10. Right of entrance and residence • The right of entrance into the territory of another Member State stems directly from the Treaty (direct effect) • The enjoyment of the right of entrance can only be conditioned to the holding of a valid identity document (such as ID card or passport) • The right of entrance into the territory of another Member State entails the right of stay for at least 3 months and the right of equal treatment as nationals of that Member State

  11. Who benefits from the right of residence? • Subjects entitled to the right of residence for more than 3 months can be: • persons moving to another Member State in order to carry on an employed and autonomous economic activity • persons moving to another Member State in order provide or receive services

  12. Who benefits from the right of residence? In addition, besides the case of employed or self-emplyed workers, Directive 2004/38/EC recognizes the right of residence to all EU citizens and their family members when: • they have adequate economic resources to support their own living and their family’s living; • they are enrolled in a public or private school or institute for a course of study; • they hold an health insurance.

  13. The right of residence: EU citizens • For periods of residence of longer than three months, Member States may require Union citizens to register with the competent authorities in the place of residence • The EU citizen should immediately receive a registration certificate, indicating the name and the address of the registered person, and the date of registration. • If this requirement is not fulfilled, the person subject to registration may be sanctioned. Such a sanction must be proportionate and non-discriminatory.

  14. Family members under directive 2004/38/EC • Art. 2 of this directive defines family members of a worker as: a) the spouse; b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point(b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point(b)

  15. Family members under directive 2004/38/EC • This directive abolished the requirement of a card or permit of residence for EU citizens and for their members who are EU citizens as well • For family members who are not EU citizens, they can enjoy their right to residence only when they hold a ‘Residence card for family members who are not nationals of a Member State’

  16. Non-discrimination (I) • Art. 45 TFUE entails 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. • This is a specific implementation of the general principle of non-discrimination contained in art. 18 TFUE • This provision has direct effect, therefore workers can directly raise claims against a Member States’ national Court for any unlawful discrimination concerning salary, social treatment, access to work, etc.

  17. Court’s cases on discriminatory treatment • Case Anita Groener C-379/87: a teacher of English holding Dutch nationality moves to Ireland to teach. In order to take the job, she is required to pass an additional language test proving her knowledge of Irish. Yet, British or Irish teachers are not required to pass the same test, given that the teaching concerns the English language. • The Court stated that Treaty rules concerning free movement of workers have direct effect and that such a requirement, if not applied to all EU citizens, is a discrimination on the ground of nationality.

  18. Non-discrimination (II) • The ban of discrimination on the ground of nationality entails the principle of equal treatment between EU workers • This is also stated in Regulation 1612/68 (now 492/2011) and in Directive 2004/38/EC • Concerning access to work conditions, nationals workers cannot enjoy a more favourable treatment than other EU workers, such as having priority or a preferential treatment for accessing a work position • Free circulation and equal treatment also apply to the person moving to seek a job (job-seeker)

  19. The ban of dissimulated discrimination • The principle of equal treatment also forbids dissimulated discrimination • Possible elements of dissimulated discrimination are: • the requirement of a residence permit; • the requirement of a title of study; • to prove the knowledge of the language, • to prove professional experience acquired in the country of origin • The Court has been very careful in these cases and established that, in order to assess whether such conditions can be admitted or not, it is important to make a case by case assessment

  20. Equal treatment for social and fiscal rights • The ban of discrimination means also equal treatment for social and fiscal rights of the worker, such as: • retribution, vocational training, treatment in case of unemployment or end of work, etc. • But also: indemnity for disable family members, favorable tariffs for public transports, etc. • And the right to enjoy trade union’s rights

  21. Workers’ family members • Regulation n. 1612/68 (now 492/2011) and Directive 2004/38/EC regulate the treatment of family members’ workers • They grant a series of rights to the children of a worker (up to 21 years old), to facilitate their integration and preserve family’s unity, such as: the right to study, to be entitled to scholarship, social benefits, etc. • When the work conditions cease, rights of the family members of the worker are preserved (art. 45.3(d) TFEU)

  22. Exception for employement in the public sector • Article 45(4) TFEU establishes that ‘the provisions of this Article shall not apply to employment in the public service.’ • The Court of Justice clarified that such exception applies only to ‘those employments involving a direct or indirect participation to public powers, or those functions concerning the protection of general interests of the State or public administration’ • The Court of Justice established that, also in these cases, the exception should be assessed on a case by case and should not be generally applied to an entire category

  23. Exceptions • On the base of art. 45(3) TFEU, limitations to free circulation of workers can be justified on grounds of: • public policy; • public security; • public health. • Case Van Duyn 41/74