Freedom of movement for workers in the European Union

The freedom of movement for workers is a policy chapter of the acquis communautaire of the European Union. It is part of the free movement of persons and one of the four economic freedoms: free movement of goods, services, labour and capital. Article 45 TFEU (ex 39 and 48) states that:

The right to free movement has both 'horizontal' and 'vertical' direct effect,^[2][3] such that a private citizen can invoke the right, without more, in an ordinary court, against other persons, both governmental and non-governmental.

History

The Treaty of Paris (1951)^[4] establishing the European Coal and Steel Community established a right to free movement for workers in these industries and the Treaty of Rome (1957)^[5] provided a right for the free movement of workers within the European Economic Community. The Directive 2004/38/EC on the right to move and reside freely assembles the different aspects of the right of movement in one document, replacing inter alia the directive 1968/360/EEC. It also clarifies procedural issues, and it strengthens the rights of family members of European citizens using the freedom of movement.

Definition of "worker"

The meaning of 'worker' is a matter of European Union law.^[6] "The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."^[7]

• Purpose: under the ECJ caselaw, the rights of free movement of workers applies regardless of the worker's purpose in taking up employment abroad,^[8] so long as the work is not solely provided as a means of rehabilitation or reintegration of the workers concerned into society.^[9]

• Time commitment: the right of free movement applies to both part-time and full-time work, so long as the work is effective and genuine^[8] and not of such small scale, irregular nature or limited duration to be purely marginal and ancillary.^[8][10]...

• Remuneration: a wage is a necessary precondition for activity to constitute work, but the amount is not important. The right to free movement applies whether or not the worker required additional financial assistance from the Member State into which he moves.^[11] Remuneration may be indirect quid pro quo (e.g. board and lodging) rather than strict consideration for work.^[12]

• Direction of another: where a person is self-employed, he can avail himself of the freedom to provide services and freedom of establishment.

Extent of the right

The right to free movement applies where the legal relationship of employment is entered into in or shall take effect within the territory of the European Community.^[13][14] The precise legal scope of the right to free movement for workers has been shaped by the European Court of Justice and by directives and regulations. Underlying these developments is a tension "between the image of the Community worker as a mobile unit of production, contributing to the creation of a single market and to the economic prosperity of Europe" and the "image of the worker as a human being, exercising a personal right to live in another state and to take up employment there without discrimination, to improve the standard of living of his or her family".^[15]

Discrimination and market access

• Case 379/87 Groener v Minister for Education [1989] ECR 3967 ^[16]
• Cases 267 & 268/91 Keck and Mithouard [1993] ECR I-6097 ^[17]
• Case 18/95 F.C. Terhoeve v Inspecteur van de Belastingdienst Particulieren/Ondernemingen Buitenland [1999] ECR I-345 ^[18]

Public service exception

• Case 149/79 Commission v Belgium [1980] ECR 3881
• Case 152/73 Sotigiu v Deutsche Bundespost [1974] ECR 153

Directives and regulations

• Directive 68/360/EEC ^[19]
• Case 48/75 Royer [1976] ECR 497
• Case 118/75Watson and Belmann [1976] ECR 1185
• Case C-292/89 Antonissen [1991] ECR I-745

• EU Regulation 1612/68 ^[20]
• Case C-207/78 Ministere Public v Even and ONPTS [1979] ECR 2019
• Case C-267/83 Diatta v Land Berlin [1985] ECR 567
• Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department [1991] ECR I-4265

Social rights

• Case 293/83 Gravier v City of Liege [1985] ECR 593
• Case C-85/96 Maria Martinez Sala v Freistaat Bayern [1998] ECR I-2691
• Case C-184/99 Rudy Grzelczyk v Centre Public d'Aide Sociale d'Ottignes-Louvain-la-Neuve (CPAS) [2001] ECR I-6193

Transitional provisions in new member states

In both the Treaty of Accession 2003 and the Treaty of Accession 2005, there is a clause about a transition period before workers from the new member states can be employed on an equal, non-discriminatory terms in the old member states. The old member states have the right to impose such transitional period for 2 years, then to decide if to extend it for additional 3 years, and then, if there is serious proof that labour from new member states would be disruptive to the market in the old member states then the period can be extended for the last time for 2 more years.^[21]

Notes

See also

• Trans-Tasman Travel Arrangement
• Compact of Free Association
• European Union law
• Citizenship of the European Union
• Internal Market
• Free Movement of Citizens Directive
• Freedom of movement

References

Bibliography

• P. Craig and G. de Búrca, EU Law: Text, Cases and Materials, 3rd edition, OUP, 2003.

External links

• European Commission: EU citizenship and free movement
• Your Europe: Work Permits
• EURES - The European Job Mobility Portal
• The Free Movement of Persons in the European Union: A Legal-historical Overview