Transcript Slide 1

European
Labour Law
Lecture 03A
3.1. Free Movement of Persons 1
Announced in art. 48 Treaty of Rome 1957
Gradually introduced between 1957-1968
Fully established in 1968 by Reg. 1612/68
The caution not to open the labour market too
abruptly was repeated by way of transition periods
- in the 1980s on the occasion of the accession of
Spain, Portugal and Greece,
- also after 2000 on the occasion of the accession
of the Central and Eastern European States,
- but not on the occasion of the accession of the
richer states (Britain, Ireland, Denmark, Sweden,
Finland and Austria)
3.1. Free Movement of Persons 2
Legally a transition period means, that MS during
a maximum period may maintain existing
restrictions (they also may renounce of it!!), but
they may not introduce new restrictions.
The transition period vis-à-vis the 10 entrants of
2004 is over now.
That vis-à-vis Romania and Bulgaria may last until
2014.
Actually The Netherlands and Spain still maintain
restrictions as regards Romanians and
Bulgarians.
And Italy???
3.1. Free Movement of Persons 3
In 2011 Reg. 1612/68 was replaced by Reg.
492/11 (not much different from the old one!!).
The right of entry, the right to stay and the right to
leave were initially laid down in Directive
68/360/EEC, now in Directive 2004/38/EC.
This Directive became very important on two
issues
- Who are the family-members to enjoy this right
together with the primary person (ECJ case law
on homosexuals, concubines etc)
- What about unemployed persons? Can they
enter? Can they stay?
3.1. Free Movement of Persons 4
The Contents of the Free Movement of Workers
regime (see Reg. 492/2011/EU, art. 1-10)
Equal access to jobs
Equal treatment in working conditions
Equal social and tax advantages
Equal access to training
Equal trade unions rights
Equal right to housing
Equal right on education for their children.
3.1. Free Movement of Persons 5
All this “equality” not only in the laws of the state,
but also in collective agreements, individual
contracts of employment, rule books, customs
and practises, etc.
All inequality is null and void.
ECJ came to some stunning applications of these
prohibitions of inequality especially in the sphere
of the equality in social advantages: railway fares,
museum tickets, housing, etc.
Also a range of cases on the entitlements to
scholarships for the children of migrant workers.
3.1. Free Movement of Persons 6
Main limitation: State A may deny a social
advantage to a person living in State B and
working in State A only on a small job (ECJ
18.7.2007, case C-213/05 (Wendy Greven).
Obviously this emphasis on “equality” has caused
the CJE to develop a consistent line of case law
on discrimination in this field, now re-enforced by
art. 18 TFEU.
- All direct discrimination is prohibited
- Also indirect discrimination is prohibited unless it
can be objectively justified.
3.1. Free Movement of Persons 7
The Free Movement regime was initially only
created for workers; self-employed could benefit
from the Free Movement of Establishment and of
Services (old art. 52/59 EEC, now art. 49/56
TFEU).
The regime was immediately also applied to
family members, the circle of which has been
extended in later years.
Ever since the free movement have been
extended to all citizens of MS, so also to students,
pensioners and economically non-active citizens –
it is now a free movement of persons.
The Directive on entrance/stay was adapted
accordingly.
3.1. Free Movement of Persons 8
The CoJEU has ruled, that the Free Movement
rules are applicable on all economic activities,
even on those of non-profit organisations like
those of churches, social institutions, cultural
societies, sport associations.etc.
Especially the last type (sport) has led to highly
remarkable involvement of the EU laws with
phenomenons like the transfer system (Bosman
case), doping rules, training compensation
(Bernard case), etc.
The CoJEU only allows minor “nationalistic” rules
as regards the composition of national teams etc.
3.1. Free Movement of Persons 9
Civil servants are not covered by the Free
Movement of workers (Art. 45(4)TFEU). However,
the CoJEU has ruled that this exception only
regards those exercising public authority or have
the responsibility for safeguarding the general
interest of the State. Moreover, once the foreigner
has got access to a public job, he may not be
treated unequally.
Criminals and some other persons cannot benefit
from the Free Movement regime as this regime is
subject to limitations on the grounds of public
policy, public security and public health (art. 45(3)
TFEU and Directive 64/221/EEC) which specifies
it. Also the CoJEU has contributed to this
limitation by ample case law.
3.1. Free Movement of Persons 10
Warning:
Since the introduction of the idea of EU
citizenship all limitations on the free movement of
workers rules have become uncertain.
They can be questioned on the basis of art. 18
FTEU (in combination with other provisions from
primary and secondary EU law.
3.1. Free Movement of Persons 11
One example: can you go to The Netherlands to study at the
University of Tilburg and immediately claim Student Income
Support according to the Dutch rules?
The Dutch authorities in the past rejected such claims as they in
principle required Dutch nationality. If you had been a worker in
The Netherlands or the child of an Italian migrant worker in the
Netherland, they would have made and exception based on the
Free Movement of Workers rules, but not otherwise.
However, since the Bidar case, EU countries must also give
Student Income Support to foreigners, who already during a
certain time are legally residing in another EU country and more or
less integrated there. So the answer on the question is still: you,
presumably cannot claim, but there has been added a further
group of persons who can claim Student Income Support.
3.1. Free Movement of Persons 12
Mobility of workers (both employees and
independent workers) in Europe is hampered by
the diversity of national qualification requirements.
Art. 53 TFEU requires action in the sphere of free
movement of services, and these EU-rules have
been extended to free movement of employees.
First there was a step-by-step (profession-byprofession) approach to harmonise certificates of
qualifications
Then there was the adoption of Directives on a
general system for the recognition of diploma’s
Now all that is consolidated in Directive
2005/36/EC.
3.1. Free Movement of Persons 13
Employment Services
In order to promote the intra-EU exchange of
workers and jobs Reg. 492/2011
- orders the national public employment services
and the Commission to cooperate
- has set up various coordinating bodies
They have launched a network-system (EURES)
fostering direct exchanges of information between
the public employment services of all MS.
Does it work??