THE FREE MOVEMENT OF WORKERS
1.
THE MEANING OF ‘WORKER’
· There is
no definition of ‘worker’ in EU legislation.
· In Lawrie-Blum, the ECJ defined ‘worker’
with reference to three criteria:
o
provision of services
o
under the direction and control of another
person
o
in return for monetary reward / remuneration
· Part-time
and/or low-paid workers are included, regardless of the level of remuneration (Levin; Kempf; Raulin; Ninni-Orasche; Trojani,
L.N.). The minimum threshold is that the worker is providing “effective and
genuine” activities (Levin). Having
to claim income support does not deprive a person of ‘worker’ status (Kempf).
· Trainees
are workers (Lawrie-Blum; Kranemann).
· Ex-workers
can still claim to be ‘workers’ in certain situations. Directive 2004/38,
Article 7(3) also protects ex-workers in certain situations:
o
Where they are temporarily unable to work as the result of an illness
or accident. This does not include those who are permanently
incapacitated from work (De Brito
(Court of Appeal); Samin (Court of Appeal)).
The question whether this provision covers pregnant women is pending before the
ECJ (St Prix).
o
Where they are in involuntary unemployment after
having been employed for more than one year or after completing a fixed-term
employment contract of less than a year. This does not apply to those
who have become involuntarily un-self-employed (Tilianu (Court of Appeal)).
o
Where they embark on vocational training, although the
training must be ‘related’ to the previous employment, unless the worker became
involuntarily unemployed. This enacts ECJ case law (Lair; Ninni-Orasche).
· Genuine
work-seekers are protected, provided they can produce evidence to that
effect. They can remain in the “host” Member State indefinitely (Antonissen; Collins) and can claim financial benefits “intended to facilitate
access to the labour market” (Vatsouras
& Koupatantze).
· Frontier
workers are included. These are people who live in one Member State and commute
to work in another (Hartmann; Geven;
Hendrix).
· There are
some limits: people engaged in rehabilitation courses (e.g. for recovering drug
addicts) are not ‘workers’ (Bettray).
2.
WORKERS’ RIGHTS
1.
Under Article 45 TFEU
Free
movement
· Workers
have the right to move from one Member State to another for the purposes of
employment (Article 45(1) TFEU, Bosman).
· Provisions
of national legislation which “preclude or deter” a worker from exercising his/her
right to seek employment in another Member State breach Article 45(1), even if
the legislation applies “without regard to the nationality of the workers
concerned” (Olympique Lyonnais).
Non-discrimination
· Article
45(2) TFEU prohibits discrimination – whether direct or indirect – against workers
based on nationality. This provision may be used to challenge discriminatory
national legislation and/or discriminatory employment policies.
· Article
45(2) is horizontally effective and can be enforced against private employers (Angonese; Casteels v British Airways).
· Direct
discrimination is very difficult to justify. Essentially, only the justifications
provided in Article 45(3) TFEU – on grounds of public policy, security and
health – and Article 45(4) TFEU – the public service derogation – are
available.
· Indirect
discrimination is justifiable on similar grounds to those recognised in the case
law involving Article 18 TFEU, i.e. by reference to “objective considerations of public interest”, subject to satisfying
proportionality. Examples include:
o
Rewarding
worker loyalty (Köbler v Austria; Schöning-Kougebetopoulou)
o
Encouraging
the recruitment and training of young workers (Olympique
Lyonnais)
2.
Under Regulation
492/2011 (previously Regulation 1612/68)
· Article 3: Member States may not
exclude foreign nationals from employment or subject them to conditions not
applicable to the State’s own nationals. However, it is permissible, if the
‘nature of the post’ requires it, that workers have certain linguistic
knowledge. This applies to teaching (Groener)
and banking (Angonese).
· Article 4: Member States may
not discriminate against other EU nationals by imposing “quotas” on the number
of foreign workers. Bosman is a
well-known example.
· Article 7(1): Workers may not be discriminated against by
reason of nationality in respect of any conditions of employment and work. This
applies to “all statutory or contractual provisions determining
[a worker’s] position and in particular their financial rights” (Sotgiu).
o
Article
7(1) overlaps with Article 45(2) TFEU and the provisions have been used
interchangeably. For example, an employer’s refusal to recognize an employee’s
experience obtained in another Member State, for the purposes of calculating
seniority, eligibility for promotion, pension entitlements, etc., breaches EU
Law. It can be challenged using Article 45(2) TFEU (Köbler v Austria, Casteels v British Airways) or Article 7(1) (Schöning-Kougebetopoulou).
· Article 7(2): Workers are entitled
to the same ‘social and tax advantages’ as those enjoyed by home State
nationals. This covers benefits “whether or not… linked to a contract of
employment”, which 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” (Even). Examples of ‘social advantages’ include:
o
Mutsch – the choice
of language in a criminal trial;
o
Reed – a live-in
partner;
o
O’Flynn – funeral
expenses;
o
Ninni-Orasche – funding
for education;
o
Hartmann and Geven – child-rearing allowance;
o
Hendrix – disabled workers’ allowance.
· Note: The ECJ has extended the application of Article 7(2)
to worker’s family members (irrespective of their nationality). Hence family
members can also claim ‘advantages’ such as rail travel
discounts (Cristini) and funding for
education (Bernini, Meeusen) under
the same conditions as nationals of the host State. These cases were decided
before Directive 2004/38 came into operation and in future such cases are
likely to be dealt with under Article 24.
3. The ‘Public Service’ DEROGATION: Article 45(4) TFEU
·
Under Article 45(4) TFEU, Member States may –
if they wish – exclude foreign nationals from ‘public service’ employment.
·
Article 45(4) TFEU
only allows Member States to restrict access
to public service employment; it does not justify discrimination
against non-nationals in terms of remuneration or other work conditions within such employment (Sotgiu).
·
‘Public service’ employment involves “the
exercise of powers conferred by public law and responsibility for safeguarding
the general interests of the state” and “a special relationship of allegiance
to the state” (Commission v Belgium
(No.1); Lawrie-Blum).
·
Article 45(4) TFEU does not apply “if rights under powers conferred by
public law are exercised only sporadically, even exceptionally, by nationals of
other Member States” (Colegio).
·
The following are not employed in the ‘public service’:
o
doctors (Schöning-Kougebetopoulou);
o nurses (Commission v France (Nurses));
o
teachers (Lawrie-Blum;
Bleis);
o
university lecturers (Alluè & Coonan);
o
carpenters, electricians, gardeners, railways
drivers (Commission v Belgium (No.1));
o
utilities company workers (Commission v Belgium (No.2));
o
post and telecom workers, radio and TV
broadcasters (Commission v Greece);
o
private security firm employees (Commission v Spain).
·
Article 45(4) TFEU applies to architects and nightwatchmen, if responsible
for government buildings and military establishments (Commission v Belgium (No.1), ships’
captains (Colegio), the Armed Force (Alevizos).
·
Other occupations where Article 45(4) probably applies
include national security services (e.g. MI5 and MI6 in the UK), the higher
levels of the civil service, and the police force.
4. CHILDREN’S RIGHTS TO EDUCATION:
REGULATION 492/2011
· Article 10
of Regulation 492/2011: worker’s children have the right to be ‘admitted’ to ‘general
educational, apprenticeship and vocational training courses’ under the same
conditions as nationals of the host State.
· Article 10
has been interpreted very
widely.
o
The right to be ‘admitted’ to education
includes “general measures to facilitate attendance”, i.e. funding for
education (Casagrande);
o
‘Vocational training’ includes University
courses (Echternach & Moritz);
o
‘Children’ encompasses all offspring of
workers, irrespective of age (Gaal).
o
Combing the above principles means that the
grown-up ‘children’ of workers can use Article 10 to claim maintenance grants
for University courses (Di Leo; Gaal).
o
Article 10 refers to a worker’s ‘child’ –
this includes step-children (Baumbast; Alarape & Tijani).
· The
working parent must be an EU Citizen but the ‘child’ may be a non-EU national (Baumbast – Colombian; Alarape & Tijani – Nigerian).
· Article 10
refers to the children of a worker who is or ‘has been employed’ in the host
State.
o
The death of the worker is therefore
irrelevant (Michel S; Casagrande;
Gaal).
o
Similarly if the worker moves to another
Member State, or leaves the EU altogether (Baumbast; Ibrahim).
o
In either situation, the child retains
his/her right to be educated in the host State.
The “primary carer” doctrine
·
Article 10 of Regulation 492/2011 includes a
right for the child’s “primary carer” to reside with the child, irrespective of
the carer’s nationality (Baumbast & R).
·
The primary carer’s right of residence is
based solely on Article 10 of Regulation 492/2011. The residency conditions in Article
7(1) of Directive 2004/38 do not apply (Ibrahim).
o
A “primary carer” can therefore reside in the
Member State even if he or she is not:
§ an EU
Citizen;
§ working,
self-employed or performing any economic activity at all.
·
The ‘child’ must have entered the education
system of the host State (Hadj Ahmed).
·
Because Article 10 of Regulation 492/2011 expressly
refers to the children of ‘employed’ persons (i.e. workers), the “primary
carer” doctrine does not cover the children of self-employed people (Czop & Punakova).
·
In principle, the primary carer’s right of
residence ends when the child reaches the age of majority (Teixeira). However, the right of residence may extend beyond that
age “if the child continues to need the presence and the care of that parent in
order to be able to pursue and complete his or her education” (Teixeira). Ultimately this is a question
of fact for the national court (Alarape
& Tijani).
