Transcript THE EU INTERNAL MARKET

EUROPEAN LABOUR LAW IN
MOTION
Freedom of movement of persons:
objectives and challenges
Michele Colucci
E-mail:[email protected]
Web site: www.colucci.eu
Brussels 22 February 2010
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The European Union:
493 million people – 27 Member States
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23 official languages
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Eight enlargements
1952
1973
1981
1986
1990
1995
2004
2007
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The treaties
1958
1952
The treaties of Rome:
The European Economic Community
The European Atomic Energy Community
(EURATOM)
The European Steel and Coal Community
2009
1987
Treaty of Lisbon (finally entered
info force!)
The European Single Act:
the Single Market
2003
1999
Treaty of Nice
Treaty of Amsterdam
1993
Treaty of European Union
– Maastricht
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Jobs and growth
Challenges:
4Demography
4Globalisation
Solutions:
European strategy for:
4More research and innovation
4A more dynamic business environment
4Investing in people
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The Lisbon Treaty (entered into force on 1
December 2009)
The Treaty will make the European Union:
More efficient
Simpler processes, full-time president
for the Council, etc.
More democratic
Stronger role for the European Parliament
and national parliaments, "Citizens initiative",
Charter of Fundamental Rights, etc.
More transparent Clarifies who does what, greater public access
to documents and meetings, etc.
More united on
the world stage
High Representative for Foreign Policy, etc.
More secure
New possibilities to fight climate change
and terrorism, secure energy supplies, etc.
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THE SINGLE MARKET AND THE
FOUR FREEDOMS
1. Freedom of movement for persons
2. Freedom of movement for services
3. Freedom of movement for capitals
4. Freedom of movement for goods
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Treaty Provisions
Art. 18 TFEU: Ban on discrimination on
grounds of nationality
Art. 20 TFEU: citizenship of the EU
Art. 21(1) TFEU: Free movement and
residence of EU citizens
Art. 45 TFEU: Free movement of workers
Art. 49 TFEU: Freedom of establishment
Art. 56 TFEU: Freedom to provide
services
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EC TREATY AND EU
CITIZENSHIP
Every person holding the nationality of a
Member State shall be a citizen of the Union.
(art. 20 TFEU).
Every citizen of the Union shall have the right to
move and reside freely within the territory
of the Member States, subject to the limitations
and conditions laid down in this Treaty and by
the measures adopted to give it effect.
(art. 21 TFEU).
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FREE MOVEMENT OF WORKERS
Artt.45 - 48 TFEU
Workers have the right to:
– accept offers of employment actually made;
– move freely within the territory of Member
States for this purpose;
– to stay in a Member State for the purpose of
employment;
– to remain in the territory of a Member State
after having been employed in that State.
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Self employed persons:
– Right of establishment(artt. 49-54 TFEU)
and
– Freedom to provide services (artt. 56-62
TFEU):
the right to take up and pursue activities as selfemployed persons and to set up and manage
undertakings .
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Secondary Legislation
The original fragmentary legislation:
- Regulation 1612/68 on freedom from discrimination in
employment;
- Directive 64/221 on derogation on grounds of public policy,
public security or public health
- Directive 68/360 on rights of workers of their families;
- Directive 73/148 on rights of the self-employed and their
families;
- Directive 75/34 on the right to remain after employment has
ceased
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Secondary Legislation
Directive 2004/38 of the EP and of the Council
of 29 April 2004 on the right of citizens of the
Union and their family members to move and
reside freely within the territory of the Member
States
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From workers to citizens
Workers
Students
European citizenship
Third country nationals/non-EU citizens
Derogations of rights of free movement
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ECJ and Freedom of Movement of
Persons: Who are Workers (1)
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-
-
-
-
Concept of worker to be defined to have a Community meaning, rather than defined by national
laws of MS:
case 75/63 Hoekstra v. BBDA [1964]: a person who had lost his job, not currently in employment
but capable of finding another job;
Case 53/81 Levin v. Staatssecretaris van Justitie [1982]: a part time worker whose income does
not provide sufficient support and fell below the nationally recognized minimum wage, provided
that the work is “effective and genuine” and not on such a small rate as to be purely marginal and
ancillary;
Case 66/85 Lawrie-Blum v. Land Baden-Württemberg [1986]:”the concept must be defined in
accordance with objective criteria…[t]he essential feature of an employment relationship,
however, is that for a certain period of time a person performs services for and under the direction
of another person in return for which he receives remuneration.”
Case 139/85 Kempf v. Staatssecretaris van Justitie [1986] a part time worker whose income was
below the minimum in the host MS and who needed to supplement that income from benefit funds
of another MS
Case 196/87 Steymann v. Staatssecretaris van Justitie [1988]: a work of a member of a religions
community who perform some household duties even without getting formally paid (only pocket
money) has been found to be “economic activity”
Case 344/87 Bettray v. Staatssecretaris van Justitie [1989]; the concept of worker does not
include a person from one MS who performs work as a part of a drug-rehabilitation program in
another MS
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THE BOSMAN case
cause C -415/93
An humble “worker” vs. a strong
system
Sport= economic activity= the end of
transfer compensation
Quid training ?
The new FIFA regulations on Status and
Transfer of Players
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EQUAL TREATMENT
BAN ON “DIRECT” DISCRIMINATIONS
Art. 18 TFEU on the basis of nationality
Art. 45 TFEU:…
– Access to employment
– Pay
– Employment conditions
Association agreement, Co-operation
agreement, and so on.
SPORT: Balog case, Simutenkov, case
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« COVERT DISCRIMINATIONS »
NO « COVERT FORMS OF
DISCRIMINATION” which, by the
application of other criteria of
differentiation, lead in fact to the same
result . (cause 152/73 Sotgiu)
YES, only in case of « objective reasons »;
proportionality test!
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THE UEFA HOMEGROWN
PLAYER RULE
THE UEFA HOMEGROWN PLAYER
RULE
Homegrown: player trained by a club for 3
years when he is between 15 and 21
years old
– 2008/2009
8 up to 25
No discrimination on the basis of nationality.
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Discriminatory act
and
limit to free movement
Discriminatory act:
– ordinary legislation,
– Collective bargaining agreements,
– Regulations of private associations,(Bosman,
C-415/93): FIFA, UEFA,
Limits to free movement:
– Public administration;
– Public order and security
– Public health
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ECJ and Freedom of Movement of
Workers: Scope
“social advantages” attached to employment
(social and tax advantages)
Limitation to access to market (extent of indirect
and direct discrimination,
justification of restrictive measures as
appropriate,
non-discriminatory,
proportionate,
justifying mandatory requirements in the general
interest).
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Reverse discrimination
“National law” v. “EU law”:
– Different scope
– different goals
EU Law does not apply to purely
internal matters.
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Derogations From Free
Movement
It is for MS to determine concepts of public
policy but limitations on free movement of
persons has to be based on personal
conduct and a present threat and have to
be proportionate (public policy, security
and public moral respectivelly in cases
41/74 Van Duyn; case 67/74 Bonsignore;
joint cases 115 and 116/81 Andoui and
Cornuaille)
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ECJ and Art. 45(4) TFEU
Public Service Exception
ECJ offered narrow interpretation of
“public service” work and determined that
the application of exception would depend
on the nature of the duties and
responsibilities involved at that work, not
on the concept of public service (case
149/79 Commission v. Belgium)
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Directive 2004/38
Scope
Applies directly only to EU citizens who move to
or reside in another MS and their family
members
- The rights of the EU citizen’s family members apply
irrespective of their nationality as long as the claim of
primary entry and residence right is made by the EU
citizen;
- Freedom from discrimination on the basis of Art. 18
TFEU transposed so that all EU citizens and their
families exercising residency rights under the
directive
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Directive 2004/38
- The rights of the EU citizen’s family members apply irrespective
of their nationality as long as the claim of primary entry and
residence right is made by the EU citizen;
- “Permanent residence” granted to all EU citizens and their family
members (regardless of their nationality and economic status)
who have resided legally in a host MS for at least 5 years (Art.
16 Directive)
- Safeguards in relation to MS right to expel individuals on
grounds of public policy or public security
- Freedom from discrimination on the basis of Art. 18 TFEU
transposed so that all EU citizens and their families exercising
residency rights under the Directive are entitled to equal
treatment with the nationals of the host MS (Art. 24 Directive)
- New administrative procedures and requirements related to
reporting requirements and residence cards
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ECJ and EU Citizenship
Application of non-discrimination principle to EU citizens:
Case C-85/96 [1998] Sala v. Freistaat Bayers: ECJ, An EU citizen lawfully
resident in a MS of which she/he is not a national can rely on the nondiscriminatory provision of Art. 18 TFEU in all matters falling within the
scope of application of the Treaty
Case C-184/99 [2001] Grzelczyk v. Centre Public: ECJ, EU citizensstudents, lawfully residing in another MS, not to be discriminated against on
the basis of their nationality when considered for welfare benefits
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SOCIAL SECURITY
Regulation 1408/71
Regulation 883/2004 (the Basic
Regulation) ('BR')
The New Implementing Regulation
987/2009 ('IR')
Both Regulations of equal value
Cannot apply one without the other
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Basic Principles of
Social Security Coordination
Article 42 EC: aim to ensure citizens do not lose social security
rights when they move
Equality of treatment regardless of nationality
Legislation of only one Member State applies at any one
time
Periods of insurance acquired in different Member
States can be aggregated
Benefits can be exported
But also Health insurance
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MUST
Update
Simplify
Clarify
Improve protection of citizens’ rights
Strength and Streamline institutional
procedures
Enhance Cooperation
"Clear and more effective cooperation between social security
institutions is a key factor in allowing the persons covered by
regulation (EC) 883/2004 to access their rights as quickly as
possible and under optimum conditions"
[Preamble of the NIR, second paragraph ]
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Some remedies
Train the Personnel
Make sure thaty they know languages and
procedures
Provide more and better information to
– Citizens
– Public and private institutions
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FOR A REAL FREEDOM TO
CIRCULATE
What can I (EU citizen) do?
Preliminary question to the Court of justice
Written question via an MEP
Petition to the EP
Complaint to the European Commission
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