Flashcards in Freedom of Movement of Persons Deck (40):
The Mobility of the Labour market
underpins a vision of an economic constitution based on open borders and competition, with workers moving to supply the demand for labour wherever this demand may arise within the internal market.
Art. 45 TFEU
Freedom of Movement of Workers
Elements required for an Employment Relationship to exist
1)Provision of Services within a relationship of Subordination (if outside of subordination then the activities are defined of as self employment)
2)Remuneration- Payment of Any Kind
3)Activities shall be “Effective and Genuine”- excluding activities carried out on such a small scale as to be purely marginal and ancillary
In determining if Effective and Genuine activities is satisfied the National Court must base its examination on Objective Criteria and make an overall assessment of all the circumstances of the case relating to the nature both of the Activities concerned and of the employment relationship at issue.
Pre and Post-employment relationships
both Job Seekers and Former workers may invoke Art 45 TFEU in certain circumstances.
Article 7 (3) of Directive 2004/38: Can retain status of Worker if:
a)Unable to work as a result of illness or accident
b)Involuntary unemployment after having been employed for more than 1 year and has registered as a job seeker
c)Involuntary Unemployment after completing employment under a year and has registered as a job seeker; has 6 months
d)Embarked on Vocational Training
Restriction on the right of Freedom of Movement
Right to Free movement of workers can be restricted on grounds of Public Policy, Public Security and Public Health.
How to Restrict the Right Of Freedom of movement; what will the Court look at
the Court will look as to whether the measure is open to Objective Justification. The Court wants to know what Public interest the national measure seeks to serve.
-The Courts wants to also know if there would be a way of achieving the same goal in a way that would be less restrictive on the rights of migrant workers. A test of Proportionality.
Art. 45 TFEU; The Direct Effect of it
Art. 45 TFEU is Directly Effective not only (vertically) against the state but also (horizontally) against Private Organizations, which regulate gainful employment.
A cross border element or “Intra-EU Factor” must be present the activate treaty rules
-Cross-border Movement for the purposes of Employment and Residency
-Cross-Border Movement for the purpose of Employment only
-Previous Cross-Border movement for employment or residency (returning)
Once established that a person falls within the definition of a worker and that EU law applied we turn to the protections that result:
A) Use of the status to tackle discrimination or obstacles to accession the Labour Market in another Member State
B) To obtain a right to reside in another Member State for both the worker and his Family
C) The right of equal treatment in relation to work conditions, employment, social benefits and tax advantages
D) The right to move for work and be accompanied by Family Members
Art 45 (2) TFEU:
Migrant Workers must have the same rights of access to employment opportunities in other Member States as the nationals of that state.
Right not to be discriminated against
includes not just Direct Discrimination but also Indirect Discrimination where through the use of particular criteria or procedures the Migrant worker is treated less favourably.
Regulation 492/2011 Rules of Equality for Workers
specific rules demanding equality of treatment, including rights of equal access to housing, the right to join a trade union and the right to the same social and tax advantages as national workers.
O’Flynn: Indirect Discrimination covered measures which
1)Essentially affected Migrant workers
2)Or the great majority affected are Migrant Workers
3)Or establishes rules and procedures that can be more easily satisfied by national workers than migrant workers
4)Or risk acting to the detriment of migrant workers.
Indirect Discrimination: may be justified not only on the basis of express treaty provisions, BUT ALSO if proportionate:
1)Adequate to meet the objective it pursues (ex. to ensure adequate qualifications)
2)Necessary (it must constitute the best suited of all available means to achieve the objective pursued)
3)The least restrictive possible on the right of free movement.
A Member state can require that a migrant worker possess its national qualifications. But MUTUAL RECOGNITION applies
the Member state can insist of possession of its own qualifications but must include equivalent qualifications that the Migrant worker possessed. (even if those qualifications were not obtained in the specific Member State)
The UK gave Job-Seekers a fixed time of 6 months to obtain employment during which time they had a right to reside in the UK:
The Court stated:
-If after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has a genuine chance of being engaged, he cannot be required to leave the territory of the Host Member State.
-Job-Seekers are workers as well!
The CJEU has considered Job-Seekers to be entitled to equal treatment in regards to having access to employment but NOT to equal treatment in regards to social advantages whilst searching for employment.
obstacle to free movement
-Any measure that may ‘hinder’ / ‘prevent’ access or create a disadvantage making it less attractive for EU workers to move
Art. 20 TFEU: Citizenship of the Union is established
According to Art. 20 (2)(a) TFEU, EU citizens enjoy a right to move and reside freely within the Member States.
The right is not absolute but is subject to conditions and within the limits defined in the treaties.
Four Categories of persons that are concerned by the free movement system:
1) Economically active EU Citizens
2) Economically Inactive but financially independent EU citizens
3) Permanent Residents
4) Family members accompanying or joining EU citizens
The Free movement regime covers a series of circumstances:
1) Right to Exit (home MS) without undue restrictions
2) Right to Enter another MS
3) Right to reside in another MS
4) Right of equal treatment/non-discrimination on grounds of nationality
5) Protection against expulsion
6) Family Rights & Rights of Family members
Right To Exit: Art. 4 Citizen Directive:
Measures which discourage nationals from going abroad have been considered as restrictions to be measured against the principle of proportionality
Nerkowska: Polish disability pension that was subject to blanket residence requirement in Poland was no good.
Right Of Residence; Incremental Protection
The longer the time spent in the Host Member State, the stronger the presumption that there is a sufficient link to it and accordingly the higher the level of rights conferred on the EU citizen.
3 Distinguishable time Periods:
More than 5 years
3 Months to 5 Years
Less than 3 Months
Level 1: Less than 3 months of residency/stay in host MS:
According to Art.6 CD no formalities can be required to move and stay in the host Member State
Level 2: From 3 Months to 5 Years
Art. 8 CD: registration may be required by the host Member State to establish residency beyond 3 months
Art. 7 CD there is a distinction between economically inactive and Active EU citizens.
-There are no conditions of Economically Active EU citizens to reside
-There is a Requirement for Economically Inactive EU Citizens; they are required to be Financially Independent and have sufficient resources and comprehensive sickness insurance.
Level 3: More than 5 years of Residence
-May be Subject to formalities contemplated in Art. 19 CD
-All EU citizens must fulfil the same conditions to acquire the right of permanent residence.
However, Art. 17 CD introduces shorter periods of residence for workers
and ex-workers, making it easier for economically active EU citizens.
Definition of what a worker is extends beyond just Full Time Workers, it includes Part time workers as well.
EU citizens: Art. 3 & 2(2) CD: Free movement rights only apply to those persons defined of as family members
1) The Spouse
2) The partner in Registered partnership (if host MS treats it equivalent to marriage)
3) The Direct Descendants, either under 21 or dependants and those of the spouse
4) The Dependant direct relatives in the ascending line and those of the partner.
Several circumstances are covered by the CD in relation to family members:
a) Right of exit
b) Right of Entrance
c) Right to reside
d) Right of equal treatment/non-discrimination
e) Status of Carer
f) Protection against expulsion
Art 4(1) CD: No Exit visa or equivalent formality may be imposed.
all Union citizens with a valid passport and their family members who are not nationals of a MS but hold a valid passport have the right to Leave the territory of a Member State to travel to another Member State
Art 5 (2) CD that Third Country National Family Members may be required to obtain a visa
Third Country National Family Members may be required to obtain a visa in order to enter a host MS. BUT the MS shall grant every facility to obtain it, issuing it free of charge, as soon as possible, on an accelerated procedure.
TCN and the Death of their Spouse
TCN family members on the other hand must have completed at least 1 year of residence in the host MS before the Death of the EU Citizen. This does not apply for Departure!
Divorce or termination of partnership (Art. 13 CD) TNC retain a right of residence if:
A) The union lasted at least 3 years, including 1 year in the host MS
B) The TCN spouse has custody of the EU Citizens children;
C) Or the TCN spouse has a right to access to the minor children of the EU citizen
Family members of EU citizens may acquire permanent residence rights under article 12 & 13 CD:
-EU national family members must be economically active or financially self sufficient
-The same applies to TCH Family members
Right of Carers:
The TCN parents who are primary carers of children who enjoy free movement rights under EU law, derived from two factors:
1) Right to equal treatment of family members of EU citizens
2) The right to education of the children of an EU citizen (irrespective of nationality) on equal footing with nationals.
Carers derive a right of residence for the duration of the studies of their children
Carers derive a right of residence for the duration of the studies of their children, irrespective of nationality and without having to satisfy the CD conditions
Even if the TCN parent is economically inactive and they are dependant on social assistance; they still derive the right of residence for the duration of their children’s studies regardless of nationality.