2 Lecture AimsTo acquire a knowledge and understanding of the substantive rights provided for by the Treaty and EC secondary legislation in relation to the free movement of workersTo examine the case law and understand the approach of the European Court of Justice in its interpretation of these rights
3 Lecture outline Article 39 Who is a worker? Anti-discrimination provisionsRights of family membersSupplemented by lecture on free movement of persons
4 Free Movement Provisions Article 39- workersArticle 43- freedom of establishment (self employed)Article 49-freedom to provide servicesRights conferred by specific directivesstudentsretired personspersons of independent meansArticle 18-right of citizens to move freelyOne of the fundamental freedoms designed to secure the internal marketRights granted by Arts 39, 43 and 49 are conferred in relation to the economically active- thus serving an economic objectiveHowever it is very clear that the provisions have asocial dimension -after all they relate to human activity-people are the direct beneficiaries of these rightsIn a number of directives were adopted which conferred free movement rights for students , retired persons and people of independent meansthen in 1992 the Treaty of European Union established citizenship of the European union and Article 18 conferred a qualified right to free movement on citizens
6 Article 39Abolition of any discrimination on the grounds of nationality (39 (2))(see also Article 12 EC)defines scope of the freedom (39 (3))includes expressly stated limitations on the freedom (39 (3))limits scope of article in respect of work in the public service (39 (4))
7 Principle of non-discrimination Article 12Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
8 Secondary legislation Art 39 supplemented by Art 40allows Council to bring forward legislation to secure the freedomDirective 64/221/EEC (derogations)Directive 68/360/EEC (entry formalities and residence permits)Regulation 1612/68/EEC (equal treatment)
9 Secondary legislation Directive 2000/43/EC principle of equal treatment irrespective of racial or ethnic origin (prohibits both direct end indirect discrimination)Directive 2000/78/EC general framework for equal treatment in employment and occupationBoth to be implemented by 3004 (July and December respectively
10 Article 39 Directly effective Case 36/74 Walrave & Koch “prohibition of such discrimination does not only apply to the action of public authorities…”“to limit the prohibitions in question to acts of a public authority would risk creating inequality in the application”Case C-281/98 Angonese“the prohibition of discrimination in Article 39…must be regarded as applying to private persons as well”
11 Nationality requirement Worker must be a national of one of the Member StatesConfirmed in Regulation 1612/68/EECnationality is tested by way of the nationality law of the state concernedit is for each state to determine which persons qualify for nationality
12 Scope of the term ‘worker’ not defined in Treatynot to be defined by national lawdefinition a matter of Community law -Case 75/63 Hoekstra-”if the definition were a matter…of national law, it would…be possible for each Member State to modify the meaning…and eliminate at will the protection afforded by the Treaty.”Generously interpreted by ECJ
13 WorkersCase 53/81 Levinincludes part time employment providing it involves effective and genuine activities.Does not include activities which are marginal and ancillary“pursuit of effective and genuine activities to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary.”In this case a British women worked as a chamber maid, whose income for doing part time work fell below the Dutch minimum wage and she had to supplement her income from her own private source. Additionally. On the facts she had only taken the job so as to obtain the right to reside3 in the Netherlands as a worker.Accordingly the Dutch authorities argued she was not a worker. Dutch court sought a PR.ECJ gave an wide definition of the term worker.Said part time work constituted for a large number of persons an effective means of improving their living conditions and the effectiveness of Community law would be impaired if the enjoyment of the rights conferred by the Treaty were reserved solely to persons engaged in full time employmentWent on to say that whilst part time work was included within scope o Art 39 the rules only cover ...pursuitNote in this case the ECJ makes it clear that the motives of the person are3 not relevant in determining their status as a worker.
14 WorkersCase 139/85 Kempf-irrelevant that the worker had to top up his salary from public fundsthe test was whether the economic activity in question was effective and genuine as opposed to one that is marginal and ancillaryThe decision in Levin was taken a step further in Kempf.Her a German resident national was living and working in the Netherlands as a music teacher. Kempf gave 12 music lessons a week and had to supplement his income from public funds. Kempf was refused a residence permit on the basis that he was not a worker and a PR was sought. The ECJ held ...
15 Workers Case 66/85 Lawrie-Blum “Objectively defined, a worker is a person who is obliged to provide services for another in return for monetary reward and who is subject to the direction and control of the other person as regards the way in which the work is to be done.”In this case the ECJ ruled that a trainee teacher was a worker. Here Deborah LB, a British women was training to be a teacher in Germany. The German authorities argued she was not a worker however the ECH, in a PR, held that a trainee teacher qualified as a worker even though her salary was nominal,
16 Workers (Article 39)Case C-3/90 Bernini-employed for 10 weeks as a trainee-a national court in assessing whether the services are genuine and effective is entitled to examine all the circumstances and ask whether the person has completed a sufficient number of hours to familiarize themselves with the workThis case Laos concerned a trainee.
17 WorkersCase 196/87 Steymann-genuine and effective albeit unconventional remunerationCase 344/87 Bettray-marginal and ancillaryCase C-357/89 Raulin on call contract in which R only worked for 60 hours over three monthsThe Court has not given much guidance on what constitutes a genuine and effective activity or indeed how much work is required.In Steymann S, a German national, worked within a religious community in Netherlands doing various odd jobs in return for which he received his board and lodging and some pocket money . Thus his remuneration was in kind rather than in case. However the ECJ reaffirm its earlier position said the test was whether the activity carried out was genuine and effective. Since the benefit that he provided to the Community was real he was held to fall within the definition of a worker.In contrast in Bettray the individual concerned was undertaking ‘social employment’ work as part of his treatment for drug addiction. Although he received some remuneration he was not a worker because the activities could not be considered as genuine and effective but were ancillary to the central purpose which was his rehabilitation.In Raulin R had been on an on call contract for 8 months during which she only worked for 60 hours. However the ECJ said that the brevity of her working hours did not deter from the fat that she provided a genuine and effective activity
18 Work seekers No specific reference in Treaty ECJ gives purposive interpretation and holds that Article 39 includes work seekersCase 48/75 RoyerCase C-292 Antonissen-person must demonstrate that he is continuing to seek employment and has genuine chances of being engaged.Clearly not everyone seeking to exercise his rights under Art 39 will have obtained a job before moving to another MS. A literal reading of Art 39 would not suggest that work seekers are included within the definition of worker. However ECJ has made it clear -in Royer, that the right of nationals of a MS to enter another MS and reside their in order to look for work is a right conferred directly by the Treaty.IN Royer the ECJ did not indicate how long a person could remain whilst looking for workHowever this matter was addressed in AntoniseHera Belgian national residing in the UK was threatened with deportation. He had been looking for work for over 6 months. The national tribunal was of the view that he was not a worker however on a referral to the ECJ the ECJ the ECJ said that whistle it was not contrary to EC law for a ms to put a limit of six months a person could not be forced to leave if he was continuing to seek employment and had a genuine chance of being engaged.
19 The worker’s family Worker’s family may also enter See Regulation 1612/68-Article 10which states that the following members of the workers family may accompany the worker (irrespective of their nationality)the worker’s spousehis (and his spouse’s) descendants under the age of 21his (and his spouse’s) descendants over the age of 21 who are dependent on himhis (and his spouse’s) ascendants who are dependent on himIn addition Art 10(2) also states that MS must facilitate the admission of any member of the family not coming with the above definition if that family member is dependent on the worker or lives under his roof in the country from where he comesThe rights of family members are dependent upon the workers status as a community worker. It should be noted from the outset that whilst the worker has to be a national of a MS the family members do not
20 The worker’s family Parasitic/derived rights family members do not need to be EC nationalsCase C-413/99 Baumbast and RIn addition Art 10 (2) also states that MS must facilitate the admission of any member of the family not coming within the above definition if that family member is dependent on the worker or lives under his roof in the country from where he comes
21 The worker’s family The spouse Netherlands v Reed Case 59/85 must be in a marital relationshipIn Netherlands v Reed a UK national moved to the Netherlands to live with her long term partner who was also a UK national living and working in the Netherlands. She was refused a residence permit. She argued that her relationship equated with marriage. And that she had a right as a dependant. The matter was referred to ECJ where ECJ held that the definition of spouse only included a person within a martial relationship and that relationships outside marriage could not normally give dependent rights of residence.However Reed was allowed to remain in Holland because, under Dutch law, a non Dutch partner of a Dutch citizen would have aright to remain if they had been in a long term stable relationship. Therefore to deny that right to a migrant worker would amount to discriminatory treatmentThis case is frequently misunderstood. It doe snot confer a general right of residence for cohabitees. Their rights will depend on the rules of the host state.A separated spouse retains the right to reside-Diatta. Although the traditional position has been that a divorcee is not a spouse the ECJ held in R that a divorced woman could not be deported where she was primary carer of the couples children.
22 The worker’s family Case 267/83 Diatta Case 370/90 Singh ( R v Immigration Appeal Tribunal and Singh, ex parte Secretary of state for Home Department)
23 The worker’s family Case C-413/99 Baumbast and R a divorced spouse is entitled to remain if he/she is the primary carer of the worker’s children
24 The worker’s family Case 316/85 Lebon Case C -413/99 Baumbast and R dependency a factual questionCase C -413/99 Baumbast and Rincludes descendants of the worker and descendants of the worker’s spouseIn Baumbast the ECJ was asked whether the word descendants referred only to the workers descendants or whether it could include step children. In this case a German national came to the UK to work accompanied by his Columbian wife and their child. In addition his wife brought her child from a previous relationship. The Court held that both children were entitled et reside as descendants.
25 The worker’s family Art 10 of Reg.. 1612/68 qualified by 10 (3) the worker must have available for his family housing considered as normal for national workers in the region where he is employedhowever this provision must not give rise to discrimination between national workers andCase 249/86 Commission v GermanyIn Commission v Germany it was held that housing only has to be adequate when the family first arrives and the worker cannot subsequently be deported of the housing becomes inadequate at a later date.
26 Rights of the workerright to enter and remain for the purposes of employmentright to remain after the employment has finishedright to be treated without discrimination on grounds of nationality
27 Rights of Entry Dealt with in free movement of persons lecture Subject to the limitations in Art 39 (3)-public policy, public security, public healthSubstantiated by Directive 68/360/EEC
28 Prohibition against discrimination Art 39 (2)Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regard employment, remuneration and other conditions of work and employment.Developed by Regulation 1612/68/EECRegulation 1612/68/EEC also confers specific rights on family members
29 Prohibition against discrimination Treaty prohibits discrimination on grounds of nationality in Articles 12 and 39 and also Regulation 1612/68Includes a prohibition against both direct and indirect discriminationDirect-Case 167/73 Commission v France (French Merchant Seamen)
30 Prohibition against discrimination Indirect- where a rule applies irrespective of nationality but in practice it is much easier for nationals of the host state to satisfyexample-residency rules/qualification rulesCase 152/73 Sotgiu
31 Prohibition against discrimination Case C-415/93 Bosmantransfer rules laid down by Football (UEFA)even though the rules applied equally to nationals (in law and in fact)such rules breached Art 39 if they impeded access to the employment
32 Indirect discrimination In cases where there is indirect discrimination or rules which impede access to the market the rules may be objectively justified ( and must also be proportionate)“Consequently the transfer rules constitute an obstacle to freedom of movement for workers prohibited by Article 48 [now 39] of the Treaty. It could only be otherwise of those rules pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. But even if that were so, application of those rules would still have to be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose.” Bosman, paragraph 104
33 Prohibition against discrimination Case C-190/98 GrafRules applying without distinction to national and non-national workers are capable of constituting an obstacle to the freedom of movement of workers where they affect access of workers to the labour market
34 Regulation 1612/68/EEC Title I-Arts 1-6 eligibility for employment Title II-Arts 7-9 equality of treatment within employmentTitle III-Arts rights of family membersRegulation 1612/68 contains a wide range of rights which are designed to protect the migrant worker and ensure he is not discriminated against when looking for and taking up employment in the host stateThese rights are contained in a regulation
35 Equal access to employment Title I 1612/68Art 1-the right to take up employment with the same priority as nationals of the ‘host’ stateArt 2-right to apply/take up offers of employment without any discriminationArt 3-MS shall not limit applications or impose conditions not applicable to own nationalsCase 167/73 Commission v France (French Merchant Seamen)Case 29/84 Commission v Germany (Re nurses)Art 4-no quotas or restrictions on numbersArt 5-non nationals must be afforded same support in seeking workArts 1, 3 and 4 require equal3 (2) Such as special recruitment processes for foreign nationals, limiting or restricting advertising of vacancies or s
36 Equal access to employment Includes any conditions which make it more difficult for foreign nationals to take up employmentCase 33/88 Allúenational legislation where contracts for foreign language teachers differed from those of nationalThe general prohibition on discrimination covers not only measures that make it directly more difficult to access employment but also measures which make the engagement of Community workers more difficultIN allue the applicant A and others challenged national legislation under which the employment contracts for foreign language assistants were limited to one year whereas no such limitation existed to other university teachers contracts. About 25% of teachers of foreign language were in fact from other countriesECJ held that whilst it was permissible to adopt measures applying without distinction in order to ensure the sound management of universities such measures had to observe the principal of proportionality. Said the rule was not necessary in the circumstances
37 Linguistic requirements Art 3 (1) Reg. 1612/68/EECIt is permissible to specify a linguistic requirement where required by reason of the nature of the post to be filledCase 379/87 Greoner-language requirement for teachers was permissibleCase C-281/98 Angonese
38 Equality of treatment Art 7 (1) 1612/68 A worker who is a national of a Member State may not, in the territory of another MS, be treated differently from national workers by reason of his nationality in respect of any conditions of employmentCase 152/73 Sotgiu
39 Article 7(2) Social and tax advantages The ‘guest’ worker “shall enjoy the same social and tax advantages as national workers”Case 207/78 Evan“all those advantages which, whether or not [they] are linked to a contract of employment, are generally granted to national workers, primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory.”
40 Article 7(2) Social and tax advantages Case 32/75 Fiorini (née Christini) v SNCF“the equality of treatment…include[s] all social and tax advantages, whether or not attached to the contract of employment, such as reductions in fares for large families”this right extends to family membersF was the surviving widow of Italian worker who had worked in France
41 Article 7(2) Social and tax advantages Case 137/84 Mutsch-right to have court case conducted in a particular languageCase 65/81 Reina- discretionary childbirth loanM was a German speaking luxembourgish national resident in Germany. He got into a fight with the Belgian police and was prosecuted . In that particular part of Belgium German speaking Belgian nationals were entitled to have their case conducted in German but M was denied this right on the basis that the right was only available to Belgian nationals. The ECJ held that this ‘right’ fell within the definition of a social and tax advantage.
42 Article 7(2) Social and tax advantages Case C-237/94 O’Flynn -funeral grantBUT...Case 316/85 Lebon-right to social and tax advantages does not extend to work seekers
43 Vocational training under Article 7 (3) Art 7 (3) Worker shall have “the same right and under the same conditions as national workers, have access to training in vocational schools and retraining centres”Case 39/86 Lair “The concept of vocational school is a more limited one and refers exclusively to institutions which provide only instruction either alternating with or closely linked to an occupational activity, particularly during apprenticeship”Case 24/86 Blaizot -university education not excluded provided it led to a qualification required for particular trade/profession or the skills needed for trade/professionnarrow interpretation of vocational training under Art 7 (3)This will be for the national court to decide on the facts. It does not exclude a university education or qualification providing the qualification is for a particular trade or professionClearly this provision prohibits discrimination in relation to access and feesIn Gravier G was charged a special additional fee known as a minimaxEU students studying in other EU member states are in fact classified as home students
44 Training for workers Art 7 (3) deals with access to training questions raised regarding financial support for that trainingissue of maintenance grants- can these be construed as a social and tax advantage under Art 7 (2)?
45 Vocational trainingCase 39/86 Lair a person who was a worker but gave up work to become a student could receive a grant (as a social and tax advantage) providing there was a link between their occupation and the studies (except where they had become involuntarily unemployed)Case 197/86 Brown
46 Vocational training Case 197/86 Brown “it cannot be inferred ...that a national will be entitled to a grant for studies in another MS by virtue of his status of a worker where it is established he acquired that status exclusively as a result of his being accepted for admission to university to undertake the studies in question. In such circumstances, the employment relationship, which is the only basis for the rights deriving from Regulation 1612/68, is merely ancillary to the studies.“Although Brown was a worker he was not entitled to claim the grant as a social and tax advantage because he had acquired the status of a worker as a result of him being accepted at university
47 Vocational training Case C-184/99 Grzelczyk French nationals studying in Belgiumapplied for minimex (training subsistence allowance) in final year of his studies (he had worked during first 3 years to support himself)refused on grounds that he was not a Belgian nationalhe was not a workerECJ held that as a ‘citizen’ of the EU he was entitled to not be discriminated against in respect of his application for the minimex (See Free Movement of Persons lecture)
48 Further rightsTrade Union activities- Art 8 Reg. 1612/68-equal treatment as regards trade union membershipCase C-213/90 ASTIHousing-Art 9 Reg. 1612/68 equal treatment with regard to access to housingCase 305/87 Commission v Greece
49 Rights of family members Reg. 1612/68Article 11-right to take up employment employment (even if they are not an EC national) - Case 131/85 Güll
50 Rights of family members Article 7 (2) Social and tax advantages to family membersnot direct rightmust be of direct/indirect benefit to the workerthus family members only have derived/parasitic rightsCase 63/76 InzirilloCase 32/75 Christini
51 Children of workersArticle 12-”the children “shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State...Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions”Case 9/74 Casagrande- ‘conditions’ includes all general measures intended to facilitate educational attendance including maintenance grantCase 42/83 Commission v BelgiumCase 389/87 Echternach and Moritz
52 Children of workers Case C-413/99 Baumbast and R whilst children in the host state accessing education their primary carer can remain with them (even after a divorce from the worker)ECJ emphasised in the judgment the importance of education for migrant children
53 Right to remainArt 39 EC Treaty refers to right to remain after having been employed subject to conditions in implementing legislationArt 18 EC Treaty (citizenship) . See Case C413/99 Baumbast“A citizen of the European Union who no longer enjoys aright of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18 (1) EC Treaty”Regulation 1251/70-right to remain after retirement-conditions laid down in directive
54 Summary Article 39 prohibits discrimination on grounds of nationality includes direct and indirect discriminationindirect discrimination may be permitted if it is objectively justified and proportionateRegulation 1612/68 provides ‘flesh’ to Article 39 and also extends rights to the worker’s family members
55 The public service exception Art 39 (4)- The provisions of this Article shall not apply to employment in the public service.Case 152/73 Sotgiu“the exception will only be applicable if [the] person possesses a power of discretion with regard to individuals or if his activity involves national interests-in particular those which are concerned with the internal or external security of the state”-per Advocate General Mayras
56 The public service exception Case 149/79 Commission v Belgium”posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. Such posts in fact presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality”
57 The public service exception Essential factor is the nature of the work done not simply because the work is in the public sectorArt 39 (4) is narrowly interpretedCase 66/85 Lawrie Blum-teacher not within public service exceptionECJ held that the provision should be strictly construed so as to limit the scope of Art 39(4) that which is necessary for safeguarding the interests of the state
58 Internal Situations Case 175/78 Saunders Case C-18/95 Terhoeve Art 39 only applies to Community workers-workers exercising the freedom to work in another MSdoes not prohibit discrimination in wholly internal situations (described as reverse discrimination)Case 175/78 SaundersCase C-18/95 Terhoeve
59 Conclusion Examined Article 39 and Regulation 1612/68 Examined the rights of nationals to work in another Member State and the right to be accompanied by family membersFurther lecture on free movement of persons
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