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

• 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 residence2) Reg. 1612/68 on the free movement of workers3) 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 time3) 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:

• 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

• 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

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;

B) This constitutes unjustifiable indi rect discrimination because it 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.

TEST

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

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 non-discrimination 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

• 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 years4. 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 clubsBUT: 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.