European Law (2016/2017) Seminar 2

Seminar 2 of the Course European Law (2016/2017), Utrecht University

Week 2

Free movement of workers and persons & EU citizenship

Seminar questions

Question 1

1. What is meant by the concept of a worker within the meaning of Article 45 TFEU? What are the two main elements of the activity performed by the migrant worker?

Answer to question 1a:

According to the case Lawry Blum, par. 12. The term ‘worker’ covers ‘’any person performing for remuneration work the nature of which is not determined by himself for and under the control of another, regardless of the legal nature of the employment relationship’’.

The two main elements are therefore: remuneration and work in subordination. For a certain period of time, a person performs services for and under the direction of another person in return for which he or she receives remuneration (par 16).

2. What protection is given to a worker by Article 45 TFEU?

Answer to question 1b:

At first, there is a freedom of movement for workers within the European Union, which means they should be able to move freely to work in other Member States. Secondly, there is a prohibition of discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, under article 45 (2) TFEU.

3. Can a worker rely on Article 45 TFEU against a private employer?  

Answer to question 1c:

Yes, this is possible. Article 45 TFEU is not applicable when there is no cross-border element, or when the employee works in the public service (art. 45 (4) TFEU). This is an exception on the article. Under all other circumstances,  the article is applicable. According to the Bosman case, par. 93: the Article has direct effect. This means that the worker can invoke the article. A worker can rely on Article 45 against a private employer, this is direct horizontal effect: the worker can invoke article 45 TFEU against the employer. When a worker wants to invoke article 45 TFEU against the Host Member State, this is vertical direct effect.

Question 2

The lighthouse guard of the lighthouse ‘Vuurlicht’ on the Dutch island Vlieland will soon retire. The Ministry of Transport and Public Works, which is responsible for lighthouses, has recently placed an advertisement for the appointment of a new lighthouse guard. The Italian Mr. Veccio is the only applicant. Mr. Veccio has finished his study in Italy but couldn’t find a job. Therefore he tries to find a job in the Netherlands. He stays now in Vlieland with his sister and brother in law who support for his living. Suppose, you work as a lawyer at the Ministry of Transport and Public Works and you are being asked to make notes with regard to the following arguments brought forward by the personnel department to refuse Mr. Veccio the job of lighthouse guard. In your notes, refer to the relevant provisions of the Treaties and, if possible, to the case law of the Court.

1. The brother and brother-in-law of Mr. Veccio are part of the Italian Mafia. According to the Ministry of Justice his brother and brother-in-law are involved in the smuggling of drugs into the United Kingdom.

Answer to question 2a:

The question is whether Mr. Veccio can be expelled, because of his family being connected to the Italian Mafia. Article 45(3) TFEU is important in answering this question. The grounds of public of the security is applicable. We have to look at Article 27 of the Directive 2004/38. It doesn’t matter whether his brother and brother-in law are connected to the Mafia, according to this article.

Previous convictions can also not lead to expelling.

There is one exception: It only applies to Member States. In this case he cannot be refused on the ground that his brother and brother-in law are connected to the Mafia.

2. A lighthouse guard is employed in the Dutch public service. The job may therefore be refused to Mr. Veccio.

Answer to question 2b:

According to Article 45 (4) TFEU, the freedom of movement of workers is not applicable when the employee works in the public service. This is described in Lawry Blum par. 27 as: ‘’employment in the public service, must be understood as meaning those posts which involve direct or indirect participation in the exercise of powers conferred by public law and in the discharge of functions whose purpose is to safeguard the general interest of the State or of the public authorities and which therefore require a special relationship of allegiance to the State on the part of persons occupying them and reciprocity of rights and duties which form the foundation of the bond of nationality.’’

Guarding the lighthouse does not comply with the paragraph, so the job cannot be refused. There must be a special relationship of allegiance to the State. A lighthouse caretaker can easily be employed by the Dutch government. It’s a functional approach. 

c)            Mr. Veccio has been resident in the Netherlands for 8 months and is still unemployed. He should therefore have left the country by now and therefore the job should be refused to him.

Answer to question 2c:

The person who is seeking work also enjoys the right of free movement (according to the Collins case), as long as a person is seeking work, he can’t be expelled. He must be given reasonable time to find a job.

However, there is a limitation on how long Mr. Veccio is allowed to stay in another Member State, if he cannot find a job. According to case law, he must find a job within 6 months, or he could be expelled from the country. In the case 8 months have passed already, this is longer than the 6 months requirement. Article 14 paragraph 14 (4b) and 6 Directive 2004/38: As long as Mr. Veccio is seeking work, he may not be expelled if you can prove you’re still seeking employment.

Mr. Veccio falls within the scope of article 21 TFEU: He is an EU citizen and he is allowed to have residence in another Member State for up to three months (art. 6 Directive 2004/38/EC). He has the right to reside and move around freely. Mr. Veccio has already been in the country for 8 months now, so he falls within the scope of article 7 Directive: Right of residence for more than three months.

Suppose that Mr. Veccio is refused the job and is still unemployed. After 8 months since his arrival in the Netherlands he wants to study Dutch law at the University of Amsterdam and applies for study finance from the Dutch authorities. That is refused because he doesn’t fulfill the condition of 5 years residence in the Netherlands.

d)            May the authorities require a 5 years of residence as a condition for study finance in case of Mr. Veccio?                            

Answer to question 2d:

No, that would be indirect discrimination on basis of nationality. According to the Förster case, a worker who is a national member of a Member State is to enjoy in the territory of another Member State the same social and tax advantages as national workers. The ECJ redressed that someone who is seeking work also is a ‘worker’ (Collins Case), so is Mr. Veccio.

The obstacle should be justified, according to the Förster case. Par. 54 Förster. The Court also referred to art. 24 par. 2 Directive.

Question 3

The Republic of Francia is a small country in Europe and a Member State of the European Union since 2007. The Francian Government has recently noticed the success of its neighboring countries in the political and economic field as a result of sport achievements in prestigious contests, such as the European Football Championship and the Olympic games. However, Francian youths seem to have little ambitions in the field of sport. The Government therefore decided to introduce a new, broad provision to encourage their youths to participate in sports and stimulate potential talents.

The new provision provides that persons get a subsidy for their children between the age of 14 and 18 of 25 euro a month, to spend on sports activities. The grant of this subsidy is furthermore subject to the condition that the youth spends 5 hours of weekly training at a gym recognized by the Francian Sports association FSA. The FSA has published a list of recognized gyms; these are all in Francia. The subsidy is therefore intended for sports activities in Francia.

Workers who are working in Francia but living with their family outside Francia (frontier workers) claim that they should also get a subsidy for their children for sports activities in their homecountry outside Francia.

1. What could be the legal arguments for the frontiers workers?

Answer to question 3a:

When the exercise of sports has the nature of employment, it falls within the scope of article 45 TFEU (Bosman-case). According to article 7 of the Regulation 492/2011, as stated in the Förster case, ‘’a worker who is a national of a Member State is to enjoy in the territory of another Member State the same social and tax advantages as national workers’’. According to article 7, the family has the right to obtain subsidy.  Otherwise, it would be a violation of the equal treatment rule, as laid down in the article. It would be indirect discrimination on the basis of nationality.

The Government further recognized that a training period abroad might well improve the performance of sportsmen/women and has therefore provided an additional arrangement. A person entitled to the subsidy as mentioned above, is allowed to train in another EU Member State at a gym or sports club for a period lasting a maximum of three months. During that period, the subsidy will be provided for as well, and extra costs due to the stay abroad and the temporary affiliation with the foreign gym or sports club are reimbursed. For this foreign activity a residence requirement applies. To be entitled to it, a person is required to have had his residence in Francia for over the past 5 years.

2. On what case law is the condition based? Can it be upheld for the frontier workers? What could be the legal arguments of the frontiers workers against this requirement?

Answer to question 3b:

A person is required to have had his residence in Francia for over the past 5 years. This is a condition based on the case Förster. A legal argument of the fronties workers against this requirement could be the rule of equal treatment as regulated in art. 7 Regulation 492/2011.

Meeusen-case is also important: This case is connected to article 45 TFEU, because it was about the mother who worked in the Netherlands. You are more protected if you are a worker than if you are enactive. The daughter of Meeusen obtained study-finance from the Netherlands, because her mother was working there.

Also other EU citizens who are not economically active but live with their family in Francia for less than five years are of the opinion that they should get the subsidy for their children for sports activities outside Francia.

3. What could be the legal arguments for these EU citizens?

Answer to question 3c:

The EU citizens which are not economically active could invoke article 21 TFEU. All EU citizens have this right to move and reside freely in the EU (Art. 21 TFEU and Directive 2004/38), whether pursuing an economic activity or not. They can invoke rights too and they may not be discriminated on the basis of nationality (art. 18 TFEU). Förster case: legitimate aim and whether it’s proportionate.

Therefore, there should be equal treatment for them too.