1. Free Movement of Workers in the EU Prof.dr.sc. Iris Goldner Lang Faculty of Law, University of Zagreb

2. Introduction EU internal market – 4 freedoms: -Goods -Workers -Services -Capital  Prohibition of national measures which hinder or make less attractive the exercise of that right, no matter whether they are discriminatory or non- discriminatory (the measure remains in case it can be justified and it is proportionate) Cross-border element

3. Free Movement of Workers (Art. 45-48 TFEU) Art. 45 TFEU: Art. 45 TFEU: (1) Freedom of movement for workers shall be secured within the Union. (2) Such freedom 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. Economic ↔ social aspect of free movement of workers Economic ↔ social aspect of free movement of workers Are TCNs encompassed by Art. 45(1) TFEU? Are TCNs encompassed by Art. 45(1) TFEU? Territorial scope of Art. 45(1) TFEU Territorial scope of Art. 45(1) TFEU Vertical and horizontal direct effect of Art. 45TFEU Vertical and horizontal direct effect of Art. 45TFEU (36/74 Walrave & Koch, C-415/93 Bosman, C-281/98 Angonese) Direct discrimination (nationality)/ indirect discrimination Direct discrimination (nationality)/ indirect discrimination

4. Art. 45 TFEU (cont.) Scope of Free Movement of Workers (3) It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (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 implementing regulations to be drawn up by the Commission. Non-exhaustive list – Art. 45(3) TFEU encompasses the right to move to another MS for the purpose of searching for employment – min 3 months (C-292/89 Antonissen) Non-exhaustive list – Art. 45(3) TFEU encompasses the right to move to another MS for the purpose of searching for employment – min 3 months (C-292/89 Antonissen)

5. Meaning of the Term “Worker” The meaning of the term “worker” is not defined by the Treaty and secondary legislation, but CJ’s case-law – broad meaning The meaning of the term “worker” is not defined by the Treaty and secondary legislation, but CJ’s case-law – broad meaning Defining the term “worker” is within the competence of the Union Defining the term “worker” is within the competence of the Union (75/63 Hoekstra (née Unger), parag. 1) Articles 48 [45] to 51 [48] of the Treaty by the very fact of establishing freedom of movement for “workers” have given Community scope to this term. Ifthe definition of this term were a matter within the competence of national law, it would therefore be possible for each Member State to modify the meaning of the concept of “migrant worker” and to eliminate at will the protection afforded by the Treaty to certain categories of persons.

6. Meaning of the Term “Worker” (cont.) Lawrie-Blum (66/85): “The essential feature of an employment relationship is that a person performs services of some economic value for and under the direction of another person in return for which he receives remuneration.” Lawrie-Blum (66/85): “The essential feature of an employment relationship is that a person performs services of some economic value for and under the direction of another person in return for which he receives remuneration.” Levin (53/81): no matter whether full-time or part-time – “effective and genuine activities to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary”; the motives are of no account Levin (53/81): no matter whether full-time or part-time – “effective and genuine activities to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary”; the motives are of no account Kempf (139/85): irrelevant whether the means of subsistence are obtained from the public funds Kempf (139/85): irrelevant whether the means of subsistence are obtained from the public funds Steymann (196/87): irrelevant whether paid in kind Steymann (196/87): irrelevant whether paid in kind Exceptions: Exceptions: Bettray (344/87); Trojani (456/02)

7. Limitations Van Duyn (41/74): broad interpretation of the ECJ Van Duyn (41/74): broad interpretation of the ECJ Bonsignore (67/74): personal conduct and not considerations of general prevention Bonsignore (67/74): personal conduct and not considerations of general prevention Bouchereau (30/77): personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of fundamental interests of the society Bouchereau (30/77): personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of fundamental interests of the society Adoui (115,116/81): the state is taking measures against such activities Adoui (115,116/81): the state is taking measures against such activities

8. Art. 27 of Directive 2004/38 on the right of the Union citizens and their family members to move and reside freely within the territory of the MSs (1) Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. (2) Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

9. Public Service as an Exception (4) (4) The provisions of this article shall not apply to employment in the public service. Public service and the realisation of MSs’ sovereignty Public service and the realisation of MSs’ sovereignty C-149/79 Commission v. Belgium (No. 1) C-149/79 Commission v. Belgium (No. 1) 1. exercise of powers conferred by public law AND 2. duties designed to safeguard the general interests of the state or of other public authorities Restrictive interpretation of the CJ Restrictive interpretation of the CJ In case of employment → non-discrimination In case of employment → non-discrimination

10. Public Service as an Exception (cont.) Commission document of the scope of Art. 45(4) TFEU (OJ C72/2, 1988): Commission document of the scope of Art. 45(4) TFEU (OJ C72/2, 1988): - Posts outside the meaning of public service: commerical services, public health services, teaching, non-military reserach - Posts within the meaning of public service: police and other forces of order, armed forces, judiciary, tax authorities, diplomatic service Commission Communication COM(2002) 694 final Commission Communication COM(2002) 694 final - “not all posts in these fields imply the exercise of public authority (administrative tasks; technical consultation; maintenance)” -“posts in State ministries, regional government authorities, local authorities, central banks and other public bodies, which deal with the preparation of legal acts - stricter approach than 1988

11. Family reunification ( 1) Who are family members: Art. 2 i 3 of Directive 2004/38 on the right of the Union citizens and their family members to move and reside freely within the territory of the MSs (2) Whose family members (3) Family link and cross-border situations (≠ internal situations) : Diatta (267/83) Diatta (267/83) Surinder Singh (370/90) Surinder Singh (370/90) Carpenter (C-60/00) Carpenter (C-60/00) Akrich (C-109/01) Akrich (C-109/01) Metock (C-127/08 ) Metock (C-127/08 ) AG Sharpston in Ruiz Zambrano (C-34/09) AG Sharpston in Ruiz Zambrano (C-34/09)

12. Post-Accession Transitional Periods Established practice at the time of the accession of Spain and Portugal and 10 CEEC in 2004 and 2007 Established practice at the time of the accession of Spain and Portugal and 10 CEEC in 2004 and 2007 Enlargement waves 2004/2007: max 7 years transitional period – 2+3+2 Enlargement waves 2004/2007: max 7 years transitional period – 2+3+2 2004: UK, Ireland and Sweden did not apply transitional periods (12 out of 15 old MSs decided to apply TPs) 2004: UK, Ireland and Sweden did not apply transitional periods (12 out of 15 old MSs decided to apply TPs) At the moment, 13 out of 15 old MSs have opened labour market to workers from 2004 enlargement countries (Germany and Austria continue to apply national measures: UK Workers’ Registration Scheme – max until 30/04/2011) At the moment, 13 out of 15 old MSs have opened labour market to workers from 2004 enlargement countries (Germany and Austria continue to apply national measures: UK Workers’ Registration Scheme – max until 30/04/2011) By now 15 out of 25 MSs opened their labour market for workers from Bulgaria and Romania By now 15 out of 25 MSs opened their labour market for workers from Bulgaria and Romania Out of 8 CEEC that acceded to the EU in 2004, 3 decided to apply reciprocity to the old 15 MSs (Hungary, Poland and Slovenia); Bulgaria and Romania do not apply reciprocity Out of 8 CEEC that acceded to the EU in 2004, 3 decided to apply reciprocity to the old 15 MSs (Hungary, Poland and Slovenia); Bulgaria and Romania do not apply reciprocity

13. Post-Accession Transitional Periods (cont.) Reasons for transitional periods: Economic? Psychological? Political? (“first-class”, “second- class” citizenship; associating the EU with free movement for the purpose of work, study and travel) Reasons for transitional periods: Economic? Psychological? Political? (“first-class”, “second- class” citizenship; associating the EU with free movement for the purpose of work, study and travel) Are transitional periods necessary and justified? Are transitional periods necessary and justified? Effects of liberalising labour market for workers from new Member States Effects of liberalising labour market for workers from new Member States a) Cheap labour (also posted workers) b) Significant economic and social benefits b) Brain drain/ youth drain, particularly certain sectors