Free Movement of Persons (Workers)

Definition
1. Not defined in Treaties, CJEU made clear that it's a union concept that only they have jurisdiction to define (Hoekstra Case 75/63)
  1. Prevents MS creating narrow definitions. CJEU has interpreted rather widely to allow as many people as possible to enjoy the rights provided
    1. Hoekstra Case 75/63 - worker who lost his job but capable of finding another should be considered a worker
      1. Levin Case 53/81 - part-time employee is to be considered a worker, provided work is 'real' or genuine work of an economic nature and not nominal or minimal
        Kempf Case 139/85 - part-time music teacher (from Germany), even though in receipt of supplementary benefit (in the Netherlands) to bring his wage up to minimum levels, came within the term
        Steymann Case 196/87 - member of a religious community provided with his 'keep' and pocket money, but not formal wages, was held to be a worker
        Ninni-Orasche Case C-413/01 - it is the nature, rather than the extent of the work which determines the status, and beign employed on a fixed-term contract will still amount to 'work'
        Bettray Case 344/87 - important case demonstrating the limits of term 'worker' - held that, as the position was atificially created by the govt. as part of a drug rehab programme, he could not be considered to be engaged in 'economic activity' of a 'genuine' nature
Additional rights for workers
1. TFEU Art.45 - principle provisions relating to migrant workers
  1. The right to accept offers of employment actually made and to move freely within host state for this purpose
  2. The right to reside in host state, for the purpose of employment, under the same rules as enjoyed by nationals
  3. The right to remain in host state after having been employed in that state (following retirement or incapacity)
    1. Retirement - if worked in host state for preceding 1 year of retirement and having resided continuously for 3 years (so earlier than the usual 5 years)
    2. Incapacity from industrial accident/occupational disease - permanent right of residence irrespective of how long they have resided in the host state
    3. Incapacity by other illnesses need 2 years continuous residence before permanent right of residence
2. D2004/38 Art.7 - will have an immediate right to reside beyond the usual 3 month period, subject to any necessary administrative formalities (Art.7)
3. TFEU Art.45(3)(c) - must not be discriminated against on basis of nationality in terms of employment, remuneration and other conditions of work and employment
  1. Reg 1612/68 Arts.7-9 expand on this - workers should also be treated equally in areas outside employment, such as provision of social advantages, access to vocational training and housing immediately when they enter host state
  2. Although discrimination unlawful, sometimes apparently discriminatory measures need to be applied by reason of the post to be filled - such as - Groener v Minister of Education Case 379/87 - Dutch national applying for teaching position in Irish school but failed oral test in Gaelic, which applied to both nationals and migrants. This was allowed because it wasn't directly discriminatory
    1. Indirect discrimination now also outlawed - O'Flynn Case C-237/94 - burial grants but only if burial in UK
      1. Even anything CAPABLE of hindering FMOP - Bosman Case C-415/93 transnational football transfer system
      2. Indirect may be subject to objective justification by host state
        Gebhard Case C-55/94 - CJEU provided that "national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil 4 conditions..."
        1) must be applied in a non-discriminatory manner
        2) must be justified by imperative requirements in the general interest
        3) must be suitable for securing the attainment of the objective which they pursue
        4) must not go beyond what is necessary to attain it
4. Work in 1 state but live in another - providing worker can demonstrate 1) 3 years continuous residence and employment in territory of host state where they wish to remain, and 2) that they return at least once a week to that state,.... they will have permanent residency in the state in which they are domiciled, after ceasing work in second host state (D2004/38 Art.17)
Worker's family
1. Entry, exit and residence
  1. D2004/38 Arts.4-7 & 16 - rights of entry, exit and residence to all EU citizens D2004/38 Arts.6,7&10 - TCN right of entry as result of familial relationship with EU citizen subject to satisfying Art.5 criteria (visa)
  2. D2004/38 Arts.16&17 - once family members who are EU citizens have been resident for 5 years they have permanent rights of residency D2004/38 Art.18 - same for TCN family members
  3. Should EU citizen from whom the familial rights extend leave the host state or die, EU citizen family members' rights remain unchanged. TCN family members must have resided for 1 year first, and won't gain permanent rights of residency unless they have 'sufficient means' or are 'economically active'. Children of the relevant EU citizen and their parent/guardian may stay in order to complete their studies - D2004/38 Art.12
2. Right to take up employment
  1. If family member an EU citizen this right provided by TFEU Art.45, this will also give them 'independent' rights an no longer rely on family member. TCN family members who have the right of residence also have the right to take up employment through D2004/38 Art.23
3. Right to education
  1. Reg 1612/68 Art.12 - children of a worker enjoy non-discriminatory access to general education, apprenticeship and vocational training schemes
    1. Broadly interpreted by CJEU - entitled to exactly the same benefits, including educational grants (Michael S Case 76/72)
  2. Gaal Case C-7/94 - right to complete a course, even after a once dependent child reaches age of 21
  3. Worker's spouse/partner entitled to equal access to educational, apprenticeship or vocational training schemes by reason of non-discrimination based on nationality in TFEU Art.18
4. Right to remain (death and divorce)
  1. D2004/38 Art.13 - divorce, annulment or termination should not affect rights of family members to reside, but conditions may apply where spouse/partner is a TCN
Limitations
1. Same as citizens (public policy, security, health) D2004/38 Art.27 and TFEU Art.45(3), TFEU Art.45(4) provides that Art.45 provisions 'shall not apply to employment in the public service' -- does not allow state to refuse entry or expel a worker but can prevent worker from taking up a job in the 'public sector' (undefined by CJEU)

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Free Movement of Persons (Workers)

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