Business, Legal & Accounting Glossary
Arts. 39-42 of the EC Treaty provide that citizens of EU member states shall have the general right to move freely within the EU to seek and take up offers of employment. Arts. 43-46 provide that citizens may work in a self-employed capacity within any member state, and set up subsidiaries of businesses established in other member states. Art. 47 sets out the general principle that there shall be mutual recognition of education and professional qualifications between member states (although little seems to have been done in this regard so far).
Transitional arrangements apply to the ten states that joined the EU in 2004. Because there was a fear of a mass influx of unemployed, poor citizens of these states into the prosperous former states, the former states have been allowed to restrict access to nationals of these states for two years. So far it appears that these fears have not been realized, and only about 1% of the population of the new member states has migrated.
Art. 39 sets out the basic movement rights of workers. In particular:
Art. 39 specifically exempts ‘public service’ employers, and the right of free movement is not unqualified (of which, more later).
There has been some question over the extent to which Art. 39 has a Direct effect: although it is clearly intended to create rights, it is less clear on whom the corresponding duties were imposed. It was initially thought that only a state could have obligations under Art. 39. Then, in the case of Bosman (1993), the ECJ held that Art. 39 could apply to the Belgian football association, a private organization. However, uncertainty remained about whether an individual employer could be subject to duties under Art. 39, until Agonese (2000) put the matter beyond doubt. So it now appears that any employer is subject to the duties created by Art. 39.
Art. 39 provides that employers may not discriminate against non-nationals, but it is left to Regulation 1612/68 to define in more detail what metas of activities would constitute discrimination. For example, the Regulation prohibits reserving quotas of posts for nationals, restricting advertising to nationals, imposing onerous application procedures on non-nationals, and imposing discriminatory medical or vocational criteria. However, employers are permitted to stipulate fluency in a particular language as a condition of employment.
Art. 39 does not define a ‘worker’, nor is this term defined elsewhere in the Treaties. The ECJ has held that its definition is a matter of EU law; if that were not the case, it would be possible for member states to escape their obligations by defining the term in a particular way. In particular, member states have frequently tried to argue that non-nationals who work for a below-subsistence wage (and must, therefore, be supported by the state) do not qualify as workers. However, the ECJ has taken a broad view of the term; in Lawrie Blum (1985) it defined worker as a person [who] performs services for and under the direction of another person in return for which he receives remuneration. In principle, the purpose of the employment was irrelevant.
However, in the more recent case of Brown v secretary of state for Scotland (1988), the purpose of employment was held to be relevant to whether a worker was entitled to a student maintenance grant. It is not entirely clear what logical basis there is, if any, in holding that the purpose of employment is relevant to student’s rights, but not to worker’s rights.
Interestingly, Art. 39 does not specifically address the status of people who are seeking work. However, in Antonissen (1989) the ECJ held that Art. 39 had to apply to such people, because to hold otherwise would be to undermine the basic purpose of the Article.
These are primarily set out in Directive 68/360. In short, this Directive stipulates the following.
Member states have frequently attempted to impose additional formality requirements as a means to limit immigration. There are also numerous instances of member states’ citing the lack of compliance with the formality requirements (such as not obtaining a residence permit) as grounds for deportation. The ECJ has taken a very dim view of such activities.
As has already been noted, the EC Treaty is not particularly clear on what rights a person has while seeking work in a member state other than his own. We have seen that the ECJ has ruled that such a person must have some Treaty-derived rights if the Treaty is to have full effect. Directive 68/360 does not clarify the situation very much, except to stipulate that a residence permit cannot be withdrawn on the basis of involuntary unemployment or incapacity due to illness or accident until a period of one year has elapsed, at which point residence can be restricted to a further year. That is, if a person loses his job through redundancy, or becomes unable to work through illness or accident, he must be allowed to remain for at least two years.
The Directive says nothing about the formality requirements that may be imposed on a person who enters a member state to seek work, nor about what should happen if a person voluntarily leaves one job to seek another. At present, the only guidance on this issue appears to come from the Antonissen ruling, which provides that an unemployed person must be allowed at least six months’ residence to seek work.
Art. 39 creates a general right to enter a member state and reside for the purposes of employment, but it says nothing about the substantive rights of the worker once in residence. These rights are primarily set out in Regulation 1612/68.
The general principle underlying the Regulation is that non-nationals should have employment rights broadly comparable with those of nationals. For example, non-nationals must be granted comparable ‘social advantages’, access to trades unions, access to vocational training, etc. However, certain rights are, by their very nature, specific to non-nationals. In particular, there is an independent right for the worker to be joined by his family — a complex issue to which we will return later.
A ‘social advantage’ is not the same as a ‘social security benefit’. Although initially, the ECJ interpreted the term ‘social advantage’ very narrowly — to mean an advantage connected with employment — it rapidly expanded to cover a wide range of different advantages. For example, benefits enjoyed by the worker’s family, although not directly connected with the worker’s employment, were within the scope of Regulation 1612 (more on this point later).
However, this expansion is not without limits. In Even (1979), the ECJ held that a French citizen working in Belgium was not entitled to have his state pension adjusted on the basis of his French war service, even though a Belgian national would have been allowed this adjustment on the basis of his Belgian war service.
Regulation 1612/68 provides that a worker who resides in a member state other than his own is entitled to be joined by members of his family, provided he is able to provide for them. There is also a right for the worker to have his children educated on the same terms as nationals of the member state — more on this point later.
The regulation defines ‘family’ to include the worker’s spouse, children under 21 years of age, and dependents of the worker and/or spouse in the descending or ascending lines. The ECJ has been keen to restrict the list of beneficiaries of family rights to those specifically named in Regulation 1612; for example, non-dependent children over 21 years of age will be excluded, as will an unmarried partner. However, it has to be recognized that the right of a worker to enjoy the same ‘social advantages’ as nationals of the member state is a separate right to the right of the worker to be joined by his family. What this means is that people who do not qualify as ‘family’ may nevertheless squeak through on the basis that their presence constitutes a social advantage for the worker (e.g., in Netherlands v Reed (1986)).
Note that the Regulation is phrased in terms of a benefit to the worker, not a general benefit to the worker’s family. It is of benefit to the worker to be accompanied by his or her family and, indeed, it would seriously hinder the Free Movement Of Workers if families’ rights of residence were not respected. However, the Regulation does not envisage benefits for family members in their own right. If a worker and his or her spouse were to divorce, it is undoubtedly the case that the non-worker would lose any right of residence that derived from the former relationship under the Regulation. This, indeed, was the received understanding of the relationship between workers’ and their families’ rights of residence until recently. However, the recently-developed concept of ‘citizenship’ of the Union may require this understanding to be revised — for a discussion of this point see EU Rights Of Residence.
Art. 39 only creates family rights where the worker has, in fact, moved This may seem obvious, given that Art. 39 is concerned with encouraging Free Movement Of Workers. However, it leads to some very odd results. In, for example, Morson and Jhanjan (C-35,36/82), two Netherlands citizens attempted to use Regulation 1612/68 to obtain a right of residence in the Netherlands for their dependent parents. These attempts failed, even though they would have succeeded had they not been Netherlands citizens. In effect, Regulation 1612 discriminates against people who remain resident in their own countries.
However, in Singh (C-370/90), an Indian man was allowed to enter the UK with his British wife, when they both moved from Germany to the UK. Following Morson, it could be argued that by moving back_ to the UK — her country of birth — the wife was not exercising a right of free movement, and so the husband should not have been admitted. However, the ECJ argued that Free Movement Of Workers would be compromised if a worker could not move back to his or her home state and obtain rights at least as favourable as those granted him by other states.
Both Morson and Singh have attracted a good deal of criticism but, in fact, these cases are easy to distinguish. The purpose of Regulation 1612/68 is to encourage Free Movement Of Workers. It does not create rights because it would be equitable to do so, but only where free movement would be encouraged. In Morson allowing the claimants’ parents to live with them in their home countries would have had no effect at all on free movement.
The right to education is one of the packages of rights granted by Regulation 1612/68, but we will consider it separately because the rights protected are different for workers and their families. It is also important to bear in mind that the ECJ has developed separate principles governing the free movement of students, which are unconnected with workers rights to education, but apply to students in general.
The most generous provision if for children. In essence, children of non-nationals are entitled to education on the same terms as children of nationals. This includes the provision of grants and other means of financial support.
Although there is limited authority on the matter, it seems likely that the principle developed in Reed (benefits to the worker’s partner to be construed as a social advantage to the worker) would be extended to enable members of workers’ families other than children to obtain access to education on similar terms.
The education rights granted to workers are not as extensive as those to children. Although the state must provide the same benefits of access, facilities, and support, the Regulation provides only for education in vocational schools and retraining centres. The ECJ has interpreted this to mean that only training which is purely vocational or at least linked to employment, must be supported. The reason why these provisions have been interpreted restrictively, where elsewhere the ECJ has been so expansive, is that a more liberal reading could allow for bogus workers to enter the state and be educated at public expense (see Brown, above).
A member state is entitled to refuse entry to a non-national on the grounds of public policy, public security, or public health. As derogations from important principles of EC law, this provision is construed narrowly, although perhaps not as narrowly as the corresponding provisions concerning free movement of goods in Art. 30. For example, in Conegate Ltd V Customs and Excise Commissioners (1986), the ECJ held that the UK could not restrict the importation of a consignment of life-size inflatable dolls on the basis of protection of public morals when such goods were already lawfully sold in the UK. In contrast, in UK v An Duyn (1974), he as permitted to refuse admission to a member of the Scientology organization, despite membership of that organization not being in any way proscribed within the UK. The ECJ accepted that a member state must be given at least a limited right to refuse entry to non-nationals on grounds that would not prevent entry by nationals because, under international law, a member state cannot refuse entry to its own nationals at all. To hold that non-nationals must be admitted on the same terms as nationals would be to hold that there could be no restrictions on entry at all.
The rights created by Art. 39, to encourage Free Movement Of Workers, are extensive. They include rights of residence, access to state-funded education, pension rights, and other important benefits. Moreover, the ECJ has used the concept of ‘social advantage’ to create new rights where this would encourage the free movement of genuinely economically active individuals (as, for example, in Reed and Singh). At the same time, the ECJ has adopted a restrictive interpretation of the legislation in areas where a liberal reading would make it too easy for people to obtain the benefits of the state without being economically active. This approach has been most evident in the court’s approach to education rights (e.g., Brown).
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This glossary post was last updated: 6th April, 2020 | 0 Views.