European Law (2016/2017) Lecture 2

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

Lecture 2: Free movement of workers & EU citizens

Dr. I. van der Helm (European Law)

This week

This lecture we start with the free movement of workers and EU citizens. Last week two other freedoms were addressed, the freedom of establishment (art. 49 TFEU) and the freedom to provide or receive services (art. 56/57 TFEU). All those rights form concerns by economic activities in another Member State.

If an EU citizen moves to another country, then there is freedom of workers. He will work for a company in another Member State. There’s also the general right of freedom of persons (art. 21 TFEU) to move and to stay in another Member State. This right is for each of us, also when there’s no economic activity. But for how long and under which circumstances?

Free movement of workers/EU citizens

The internal market is the key objective of the European Union (art. 3(3) TEU & art. 26 TFEU). The free movement of goods, persons, services and capital is ensured. Restrictions on the access of the internal market have to be removed. The free movement of persons is divides into:

1. Of workers holding nationality EU country (art. 45 TFEU) and;

2. Other EU-citizens (art. 21 TFEU). For example: students, tourists, retired.

The workers

Art. 45 TFEU is the provision to determine what it means to be a worker. In addition, there is a regulation 492/2011, which contains an elaboration of the main rules and it contains also other detailed rules.

According to the ECJ in the case Lawrie Blum, a definition is given of ‘who is a worker’. It is important not to look at definition of a worker in the national law. There might be a difference in all those Member States, so that could lead to limiting of the right of free movement. The EU rules are important, there are EU criteria and they should be interpreted broadly. The criteria are very important for the employment relationships.

Lawrie Blum case: ‘’During a certain time someone provides services for another under his authority and receives remuneration for this’’. The nature of the legal relationship is not relevant. There must be work against remuneration in subordination.

The case Bosman is about sports activities: an economic activity in EU law, and is a football player a worker? Read the case! Trainee teachers gave lessons for a few hours per week. According to the ECJ, also part-time workers should be considered as workers in the light of art. 45 TFEU. When the exercise of sports has the nature of employment, it falls within the scope of article 45 TFEU.

There is also a prohibition of discrimination based on nationality between workers of the Member State (art. 45 TFEU). The rights of article 45 (3) TFEU are regulated in the Directive 492/2011. The regulation has direct effect and can be invoked by workers.

Seeking work

Free movement of workers is also seeking work, so persons who are looking for a job (Case Antonissen, Case Collins). The ECJ has rules in case law that the right of the freedom of workers that the person who has no work yet is entitled to seek work in another Member State. This concerns equal access to the internal market, but not the right for social benefits/advantages. The work must be found within a reasonable time (Case Antonissen). When you have not found work within 6 months, you could be expelled. This was found reasonable by the Court.

Applicability and direct effect

Article 45 TFEU is not applicable in internal situations (no cross-border element/aspect) or employment in public service (art. 45 (4) TFEU). The Court interprets this restriction very narrowly. An exception is safeguarding the general interest of the state, like, for example: people who are working in the army, the judiciary.

In all the other cases, the freedom of workers has direct effect (Bosman case). The right can be invokes vertically and horizontally. A worker can invoke the right vertically against the host Member State, or horizontally against his employer.

Forbidden

• Direct discrimination on basis of nationality (art. 45(2) TFEU), there are exceptions said in art. 45(3) TFEU. For example, the Bosman case.
• Indirect discrimination on basis of nationality (art. 45(2) TFEU), unless: the exceptions in art. 45(3) TFEU occur, or the indirect discrimination pursues a legitimate aim which is justified by overriding reasons of public interest, is appropriate to achieve the legitimate objective pursued appropriateness and; does not go beyond what is necessary to achieve the desired objective (proportionality). All of these conditions should be met.
• Obstacles to free movement, unless justified legitimate aim for pressing reasons of public interest and proportional (rule of reason) (ECJ Bosman).

The rights of the workers

In the Regulation 492/2011 the rights are regulated for the workers. One of time is the right of same social and tax advantages (art. 7(2) Regulation). You can think of social benefits for family and children. Also the members of the family can have these advantages. Look at the Meeusen case. The question was whether the child of the worker was entitled to study in the Netherlands, while she lived in Belgium.

The free movement of workers also applies on frontier workers (workers who work in another Member State, but choose to stay in the Member State of origin: they should have the same advantages).

Freedom of movement of all EU citizens

The EU citizen and its rights are defined in art. 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. There is also a prohibition of discrimination on the basis of nationality (art. 18 TFEU). This article and article 21 TFEU give protection to the EU citizens, see case Förster.

The right to move and reside in the EU is regulated in the Directive 2004/38, also on what conditions you can stay and what rights you can claim. The right of residence is up to three months (art. 6, 14). Than the right of residence for longer than 3 months (art. 7) and the permanent right of residence (art. 16). The restrictions are regulated in art. 27 and equal treatment in art. 24.

Requirements:

• Valid ID or passport (art. 6)
• No unreasonable burden for the Host states, you will not claim any benefits (art. 14)

When a person wants a longer residence than three months, the person will have to fulfil the extra requirements of articles 7 and 16. Also the restrictions of article 27 are important.

Equal treatment for all persons is also important. Workers have to be always treated equally. But what about the other persons? This is regulated in article 24 of the Directive.