Transcript Free movement of workers

Free movement of workers
In this course we’ll focus the
substantive dimension: how EU law
impacts on life of individuals
Economic integration: Goals, Stages,
Methods
• Art. 3 TUE: .. promote full employment and
social progress .. create a single unified
market in the Union –
• Art. 26 TFUE: “The internal market shall
comprise an area without internal frontiers in
which the free movement of goods, persons
services and capital is ensured”
• This fundamental freedom is complemented
by competition law rules
Different degrees of economic
integration
• Free trade area: free movement of goods
(NAFTA)
• Customs Union : free movement of goods
(common external tariff)
• Common/Single/Internal Market (all factors
of production plus competion law provisions)
• Economic Union: in addiction harmonization
of economic, monetary and fiscal policy:
single currency
Methods of economic integration
• positive integration: harmonization of the
legal systems through common rules
(adoption of secondary legislation at EU
level)
• negative integration: approach legal systems
through common prohibitions (case law of
ECJ: if national rule contravenes a Treaty rule,
the national rule will have to be put aside)
Positive and negative integration
Negative integration in itself is not sufficient
to remove all obstacles to access to the
market. It requires a nice mix of positive and
negative integration
Free movement of persons
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personal scope and application
infringements of provisions
justifications by Member States
EU Citizenship
Free movement of workers
Art. 45 TFUE
“1. 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.
3. It shall entail the right:
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
To recap
• This right also entails the right to work in
host MS and to take along with the family
• Equal treatment between EU nationals
• Prohibition of discrimination on nationality:
cardinal rule of the Treaty
Direct effect
The rights contained in Art. 45, 49 and 56 TFUE are
directly effective: the Court ruled that the
provisions of Article 45.1 and 2 TFUE impose a
sufficiently precise obligation to confere direct
effect (Van Duyn case).
The Court also ruled that the prohibition of
discrimination in Article 45 TFUE applied both to
agreements intended to regulate paid labour
collectively and to contracts between individuals:
so Art. 45 had horizontal direct effect and
applied to private persons.
The secondary legislation
The details of the rights laid down by art. 45 TFUE
were expanded by 3 secondary measures:
1) Dir. 68/360 on the right to entry and residence
2) Reg. 1612/68 on the free movement of workers
3) Reg. 1251/70 on the right to remain
Now replaced by a single Directive on
Citizens’Rights : Directive 2004/38
The personal scope of application
Relevant provisions
• art. 45 TFUE Free movement of workers
• art. 49 TFUE Freedom of establishment
• art. 56 TFUE Freedom to provide services
• In the early days of the EC freedom of movement
was limited to those moving for economic
purposes
Conditions
What are the specific conditions required by
these provisions in order to be able to rely
upon them before the Courts?
• 1) Only for EU nationals
• 2) A cross-border element (not purely
internal situation: case law Angonese v.
Cassa di Risparmio di Bolzano)
• 3) Economic activity (difference between
worker (45) and self-employed (49-56)
NOTION OF WORKER
Autonomous EU concept: definition of worker (the Lawrie Blum
case):
1)Economic activity: “a genuine and effective, not merely marginal
and ancillary economic activity” (also trainee job, or part-time
worker: a violin teacher for 20 hours per week is a worker for the
purposes of the Treaty)
2) Certain period of time
3) Under direction of someone else
4) Remuneration (also in kind)
Wide interpretation of notion of worker: it’s a fundamental
freedom!
Point of reference
• The Court of Justice has elaborated the notion
of worker most extensively in the area of free
movement of workers and, in recent years,
has used the definition of “workers” under
article 45 TFUE as a point of reference in
determining the meaning of similar terms in
other employment Directives (i.e. Working
Time Directive 2003/88, Pregnant Workers
Directive 92/85)
Including work seekers
• The Court has also extended the definition of
“worker” to include those seeking work
(Antonissen case, Martinez Sala case, Collins
case):
• While the period allowed for work seekers to
remain in the host state depends on the rules of
that state, they must be given at least 3 months
to look for work, although if they are dependent
on social security they may be asked to leave.
SELF-EMPLOYED
A self-employed person is defined as an independent
worker, who works independently of an employer, in
contrast with an employee who is subordinate to and
dependent on an employer (European Foundation)
In the category of self-employed we have to
distinguish:
• art. 49 freedom of establishing
• art 56 freedom to provide service
How distinguishing?
The distinguishing criterion is the temporary
nature of the activity:
• people who establish in another MS have
more permanent character
• people who merely provide services of a
temporary nature
Elements:
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duration
regularity
periodicity
continuity
i.e. a plumber, a dentist or a lawyer who moves
from Greece to Germany in order to set a
practice there, or who moves with family
This freedom have a fundamental nature and
have to be interpreted in wide manner
Concept of services
• not only service providers but also service
recipients (i.e. EU tourists who take holidays in
another EU Member State)
Material scope of application
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EU citizen
Family member :
spouse
partner
direct descendants under 21 or still dependent
dependent direct relatives in the ascending line
of the citizen or spouse
Family
• Regulation 492/2011 was designed both to
facilitate the free movement of workers and
their families, as well as ensuring their
integration into the community of the host state:
“…took into account, first, the importance for the
worker, from a human point of view, of having his
entire family with him and, secondly, the
importance from all points of view, of the
integration of the worker and his family into the
host MS without any difference in treatment in
relation to nationals of that State.”
The right to move implies the righs:
• -to exit MS
• -to entry in the host MS
• -to reside in the host MS
Equal treatment
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The Treaty prohibits discrimination on ground of
nationality in:
Access to employment
Employment conditions
Housing rights
Social and tax advantages (Cristini case: train
tickets)
Education or vocational training for the child of
migrant workers
And also….
Equal treatment with nationals in respect of:
*trade union membership
*exercice of rights related to trade union membership,
including the right to vote and to be eligible for the
administration or management posts of a trade union
(not in bodies governed by public law)
* Right of residence or right of permanent residence to
take up employment or self-employment in the host
state for family members (after 5 years or a shorter
period for those economically active)
Infringements of the free movement
• Direct discrimination (in law and in fact)
• Indirect discrimination (equal treatment in law ,
but different treatment in fact: it entails a
practice rule criteria apparently neutral at first
sight, but in fact having a detrimental impact :
Allué and Coonan: teacher of foreign language in
Italy only receive contracts of limited duration –
residence requirements or language
requirements must be specifically justified)
Direct discrimination
There is a direct discrimination when the
migrant worker is treated less favourably
than the national worker
Ex: in Commission v. Italy case the Italian law
provided that private security work could be
carried out only by Italian security firms
employing only Italian nationals
Indirect discrimination
• Indirect discrimination involves the
elimination of requirements which, while
apparently national-neutral on their face,
have a greater impact or impose a greater
burden on nationals of other Member States
or have the effect of hindering the free
movenment of persons.
• Thus, indirect discrimination focuses on the
effect of a measure.
O’Flynn case
• “Conditions imposed by national law must be
regarded as indirectly discriminatory where,
although applicable irrespective of nationality,
they affect essentially migrant workers… or
the great majority of those affected are
migrant workers, … where they are indistincly
applicable but can be more easily satisfied by
national workers than by migrant workers .. or
where there is a risk that they may operate to
the particular detriment of migrant workers”
Objective justifications
• Indirectly discriminatory measures also breach
Article 45 TFUE and the Regulation UNLESS
saved by one of the express derogations or
objectively justified:
“It is only if those provisions are justified by
objective considerations independent of the
nationality of the workers concerned, and if
they are proportionate to the legitimate aim
pursued by national law” (O’Flynn case)
Exemples of indirect discrimination
• Service requirements are often found to be
indirectly discriminatory (Scholz case, refuse
to take into account previous employment in
Germany)
• Language requirements (but they can usually
be justified (Groener case, knowledge of
Gaelic language; Angonese case, possession of
certificate of bi-lingualism)
TEST
The University of Florence is advertising a vacancy for a lecturer in
law and on of the requirements is proficiency in Italian, due to the
heavy teaching load in the bachelor programme in Italian. Which
of the following is true?
A) This constitutes direct discrimination on grounds of nationality
because Italian nationals are favoured;
TEST rect discrimination because it
B) This constitutes unjustifiable indi
implies equal treatment in law but different treatment in fact;
C) This constitutes a non-discriminatory restriction to the free
movement of workers;
D) This constitutes indirect discrimination, this can nevertheless be
justified given the heavy teaching load in the bachelor
programme.
RESTRICTIONS
genuine non discriminatory measure
• (i.e. Bosman case: transfer sum for football
players)
Possible justifications for the enfringement:
• Justification arguments invoked by MS:
substantive, procedural, treaty v. judicial, which
one can invoke?
• Justifications have to be interpreted restrictively
Treaty Derogations
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art. 45.3 and 45.4 (complemented by
directive n. 2004/38) covers:
Public policy
Public security
Public health
Employment in the public services (implying
the exercice of official authority)
Employment in the public service
• ARTICLE 45.4 TFUE provides that the principle of
free movement of workers and nondiscrimination on the ground of nationality do
not apply to “employment in the public services”
• This specific derogation has had a large effect in
practice, because it has been traditional for
Member States, as part of the exercise of their
sovereignty, to reserve certain public service jobs
to their own nationals.
Articles 51 and 62 TFUE
• Articles 51 and 62 TFUE contain an equivalent provision
in respect of establishment and services.
• Art. 51: “the provisions of this chapter shall not apply
… to activities which in that State are connected, even
occasionally, with the exercise of official authority”.
• The justification is that particular posts presume a
“special relationship of allegiance to the State” and a
“reciprocity of rights and duties which form the
foundation of the bond of nationality” (Commission v.
Belgium case; Anker case, Spanish Merchant Navy
case)
Under directive n. 2004/38
• Personal conduct of individual concerned:
“genuine, present and sufficiently serious
threat affecting one of the fundamental
interest of the society”
• No measures of general prevention
• Previous criminal convinctions not sufficient
..under directive 2004/38
• Before expulsion: considering duration of
stay, age, health, family and economic
situation, social and cultural integration, link
• For public healthy, only deseases with
epidemic potential
Procedural requirements
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Notification
Motivation
Judicial review
Limited duration
(Donatella Calfa case: possession of soft
drugs in Greece: expulsion for life not
allowed)
TEST
Mr. Cruz is a Spanish national residing in Poland. He has
been caught stealing several bottles of Polish vodka and
Polish authorities are planning to issue an expulsion
decision against him. Which of the following is true?
1. Polish authorities may expel him on grounds of public
health
2. He cannot be expelled as his behavior does not represent
a serious and genuine threat to Polish society
3. He may be expelled for a period of maximum 5 years
4. He cannot be expelled as he is an EU national making use
of his free movement rights
Fundamental Rights
…. as justification of restrictions
• Omega case: English company specialized in
simulation of war games wanted open
secondary branch in Germany (fundamental
principle of human dignity and the right to
life for refusing)
Judicial derogations:
which justifications can be invoked?
(additional grounds beside Treaty justifications)
• Legitimate aim
• Proportionality (test of suitability and necessity)
Bosman case: transfer rules considered
restrictive: training of young players and need to
preserve financial balance between clubs
• YES: legitimate aim
• NO: proportionality
Ex judicial derogations:
Gambling case:
• fighting organized crime and preventing
fraud,
• protect consumers,
• limit gambling addiction
Justifications
Direct discriminations: only Treaty justifications
Indirect discriminations: Treaty justifications
and judicial derogations
EU citizenship
• free movement of non economic active
people
• introducted in the Maastricht Treaty 1992
• Art. 20 TFUE: “Every person having the
nationality of a MS automatically is also a
citizen of UE”
• EU Citizenship is additional and not replace
the national citizenship.
IT IMPLIES:
• Right to move and reside freely in the
territory of host MS
***Under conditions: sickness insurance in
host MS and sufficient financial resources
(art. 7 dir. 2004/38)
• Right to vote and stay as candidate in EP and
municipal elections
• Rights to diplomatic and consular protection
• Rights to present petition to EP
Considered the fifth fundamental
freedom
regarding:
students,
retired people..
A little-used right?
The free movement, while is one of the four
fundamental freedom of the EU, has in fact
been little used by EU workers during 46
years since the Treaty of Rome. Things
changed significantly with the 2004
enlargement of the Union, when about 3,6
million workers migrated from a MS to other
MSs (inter-EU migrations) in search of better
living and working conditions.
SPORT as the main field of free
movement of workers
While the free movement of workers was in
fact little used by EU workers, with the 2004
enlargement of the Union about 3,6 million
workers migrated from a MS to other MSs.To
bring the theory in practice: sport is the
paradigm of the free movement in EU (in
general there is a limited number of cases,
but in the sporting case the % is much high.
The case of Inter F.C.
In 2010 the Inter Football Club of Milan had a
Portuguese coach: José Mourinho,
4 argentinians, 3 Brasilians, 1 Duchman ,
1 Romanian, 1 from Macedonia, 1 from
Cameroun: 0 italians, 2 EU nationals and 9
third country nationals composed the team
of INTER.
Special place of Sport in EU law
• In the original Treaty of Rome, sport can’t be found:
no competence?
• Claim autonomy sport federations: no intervention
from outside
• Walrave and Koch case 1974 : cycle
Court ruled:
“sport is part of EU law insofar it constitutes part of
economic activity”
• Donà and Mantero case 1976: confirmation opened
the gates of litigations in sport
• Bosman case, 1995: legendary case, which is one of
the most important case decided by ECJ
Lisbon Treaty 2009
Sport is a Union policy (art. 165 TFUE):
complementary competence of EU,
primary competence remains on the MS and
the sporting federations
TEST
What is the place of sport in EU law?
I Sport falls outside the scope of EU law because it is
nowhere mentioned in the Treaties
II Sport form part of EU law ever since entry into force
of the Lisbon Treaty, which expressly recognized sport
as a Union policy
III Sport does not fall within the scope of EU law
because the Union only has a complementary
competence in this field
IV Sport forms part of EU law, but the Union only has a
complementary competence
before Lisbon Treaty
Clashes between sport rules or practices and EU law in the
past:
Dispute about Transfers
• Bosman case: “Out of contract, EU football players are
entitled to make use of their free movement rights for
free” (enormous change)
Legitimate aims:
• Training for young players
• Sporting and financial balance between clubs
BUT: the transfer rules failed to comply with the principle of
proportionality
Dispute about transfer windows
• Transfer windows: period in which transfer
can be effectuated
• Lehtonen case (basket): “Limited transfer
periods are an infringement of free
movement provisions” “but they could be
justified” in light of “homogeneity of
competitions” and “comparability of results”
Dispute about compensation for
training
• Bernard Case: compensation for training
(from Olympique Lyon to Newcastle): training
compensation could be acceptable
The special case of Sport
Nationality discrimination in sport
• Nationality restrictions: to limit or exclude
the participation of foreigners athletes in
sport competitions: dismissed by the Court at
club level (1976 Donà case: Italian rule
banning foreign players brandished as an
infringement of free movement rights)
• In principle: labour market be opened for
foreign EU athletes
• In practice: Market opened only to a limited
extent (2-3 foreign athletes)
After Bosman case: the market was entirely
liberalized: nationality clauses could no
longer be maintained with regard EU players
(Barcelona FC with 11 Duch players)
Nationality restrictions and third
country nationals
• Kolpak case (a Czech athlete playing in
Germany :
Court ruled:
“under certain conditions a third country
national is a privileged foreigner”
national clauses do not apply
Conditions
• -Legally resides in host country and has a
work permit
• -International agreement between EU and
that third country
• -Agreement provision on equal treatment
• -Agreement provision has direct effect
What about a non-EU player?
• Simutenkov case: Russian football player in
Spain (only 3 foreigners) : Court verified the
existence of the 4 conditions
Agreements and nationality
restrictions
• In practice many international agreements
• In practice many foreigners who may circumvent
national restrictions
• Sporting federations hold on to nationality
restrictions or even want to reintroduce them
• Up until now the Court and the other EU institutions
have been very reluctant to accept this.