Eu Problem Question Workers

Front 1

Issues:

Back 1

Whether EU law applies and what rights

and therefore whether compatible with relevant law, what the remedies are

Status is key: remember advise as if worker as has more rights

Front 2

Questions:

Back 2

1. Does EU law apply, and which?

2. Is there a breach?

3. Can the breach be justified?

4. Is it be proportionate?

Remedies

Front 3

Does EU law apply

For Treaty Provisions to apply

Back 3

1. personal scope

2. material scope

3. territorial scope of treaty

4. must be able to rely upon against particular defendant

Front 4

Is there a breach

Back 4

Non discriminatory (direct/indirect) basic test Increasingly more towards restriction, or more properlymarket access

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Justifications

Back 5

express derogations

policy security and health

PSH

judicially developed public interest requirements

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Proportionate

Back 6

Good governance

General principles of law

FHR may be relevant

Front 7

Remedies

Back 7

Procedure 30-33

National remedies subject to procedural autonomy

State liability as fall back where directive not implemented properly

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Concluding questions

Back 8

result for parties:

breach? result?

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Workers rights

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Article 45 TFEU. “Freedom ofmovement for workers shall be secured within the Union”

Regulation492/11 (former Regulation 1612/68) for workers)

Directive2004/38

Article 18: discrimination

Arts 20-25 TFEU.

Front 10

Case for EU definition worker

Back 10

Lawrie-Blum

authority

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Lawrie-Blum

Back 11

Trainee teacher was a worker.

A worker is someone who, for a certain period of time,performs services for and under the direction of another person, in return forwhich he receives remuneration.

NC: decide subordination

Nature legal relationship immaterial

Individual can live in 1 MS and work another

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Series of cases which further explanation of worker

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Genuine effective: Steymann,Bettray, Trojani,

Not ancillary: Levin, Raulin, Kempf.

Worker must be engaged in ‘genuine and effective’economic activity to the exclusion of those which are purely marginal orancillary.

Case by case

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Wide interpretation of worker and kind of things

Back 13

“Worker” has been interpreted widely by the courts.(Levin, Kempf, Steymann)

Eg (MAY include) professional football (bosman),prostitute, apprenticeship, types of training

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Steymann

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Worked as part of a community-based religion: might notconstitute economic activity.

Worked for aBhagwan community as part of its commercial activities. On the facts, the courtconsidered that since community looked after his material needs and paid pockedmoney (Remuneration: received lodging, accommodation, food and some pocketmoney for his services) this might constitute indirect (something forsomething) genuine and effective work.

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Bettray

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Paid activity provided by the state as part of a drugrehab programme did not represent a genuine and effective economic activity,since the work which was designed for those who could not take up work undernormal conditions, was tailored, intended to reintegrate them into employmentmarket.

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Trojani

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French national lawfully residing in Belgium at a Salvation Army hostelfor which he did various jobs for about 30 hours per week as part of areintegration program. In return of his jobs he received board, lodging andsome “pocket money” as an allowance of 25 euro per week. He applied for a minimum subsistence allowance but he was refused because he was not of Belgian nationality or aworker (Regulation 1612/68)

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Levin

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Part-time worker are stillconsidered workers. Provided activity is considered to be genuine. Britishwoman working part-time as chambermaid in the Netherlands, could be workeralthough less than subsistence wage. Part time constituted an effective meansof improving individuals living conditions.

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Kempf

Back 18

Piano teacher working 12 hours a week. This is less thanpart time. And earning less than minimum. And supplemented by social securitybenefits.Court said yes, he is still a worker – activity genuineand effective and it is not marginal or ancilliary.

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Raulin

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Court emphasised role of national court making finaldecision. 0 hour contract, not obliged to work, matter for national courttaking into account irregular duration.

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Kurz

Back 20

Tend to find individual is a worker where possible

Front 21

Right?Direct effect -

Back 21

Article 45 workers: French Merchant Seamen, confirmed in Van Duyn

Article 21 citizenship:vertically directly effective: Baumbast

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Bauubast

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Article21: Direct effect, has limits (accordance secondary law egdirective: resources), limits must be interpreted in light of proportionality principle

German nationalresiding in the UK, married to Colombian national. They were all residing inthe UK. He was working in the UK. At one point, his company asked him to startmoving and provide services in Africa and Asia, but family remained in the UK.He continued to provide for the family, and they had health insurance. Moreover, they had health insurancein Germany to which they travelled for health care. In this case: Held his insurance which does not coveremergencies is sufficient as otherwise disproportionate restriction on hisright in article 21.

Chen similar:

The baby didn’thave sufficient resources - coming from mother. Need to interpret twoconditions in line with principle of proportionality. To deny this residencepermit to the baby who be a disproportionate affect on its right to freedom ofmovement. Direct effect shown again.Mother has rightto reside as primary carer or else baby’s right is useless. Logic: [Requirementfor resources in in accordance with recital 16 of the directive: so that you donot become unreasonable burden on social assistance system of that MS]

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Against the defendant?

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AgainstHOST/HOME

Not wholly internal

Horizontal 45 directly effective?

Clean Car: hinted horizontal

Angonese: confirmed - for non-discrimination

Facts: The case concerneda requirement imposed by a bank operating in Bolzamo (the Italian and Germanspeaking province of Italy and admission to its recruitment competition wasconditional on possession of a certificate of bilingualism. Because thiscertificate could be obtained only in Bolzano, angonese, an Italian nationalwho had studied in Austria was not able to compete for a post in the bank onthe ground that he lacked the Bolzano certificate even though he submittedother evidence of his bilingualism. Indirectly indiscriminatory. Althougheffected people in other parts Italy. Justified but disproportionate.

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Retaining status as worker

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Directive

article 7(3) certain circumstances keep status

...for the purposes of 7(1)(a) of directive a union citizen who is no longer shall neverthless retain:

- temporarily unable to work as a result of an illness or accident

- in involuntary unemployment

- specified circumstances, vocational training

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Saint prix

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pregnancy retained worker (strain) as within workeras within article 45 TFEU and Article 7 Directive 2004/38

The Court noted that it has consistently heldthat pregnancy must be clearly distinguished from illness (paragraphs 29-30).Rather, it was because the concept of ‘worker’ had to be interpreted broadly. Otherwise deterred.

Did notnecessarily depend on the actual or continuing existence of an employmentrelationship

Non exhaustive list in 7(3) directive

compared prisoners - who retain status during jail time

Unlike the Advocate-General’s opinion, the Court ofJustice made no mention of the Charter of Fundamental Rights or to sexdiscrimination issues more generally.

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Saint prix on being deterred

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The Court accepted that a Union citizen would bedeterred from exercising her freedom of movement within the Union if havinggiven up work due to pregnancy she risked losing her worker status, and furthernoted that EU law gave special protection for women in connection withmaternity, such as that continuity of residence was not affected, amongst otherthings, by an absence of up to 12 months for ‘important reasons such aspregnancy and childbirth (paragraphs 44-45).

Front 27

Meaning of temporarily in 7(3)

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Decided case by case

EU law meaning

As does not say 'in accordance with NL'

Wide definition of worker

Danmark - interviewed and din't say pregnant, not at fault despite knowing

Dias: Not discussed but not treated as worker after maternity leave and remained not at work. mothers absence from work extended beyond the time there was a medical reason for her not to return to work.

Saint Prix - clear period on account of physical and mental constraints attributable to pregnancy - period coincided where under NL not required to work.

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Adding pregnancy into directive

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an attempt had been made at thecommittee stage before the European Parliament to insert a reference topregnancy in Article 7(3) of the Commission proposal, which was silent on thepoint.

UK argued relevant in DIas. but seems not.

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Rights for workers:

what do we look at

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Regulation gives the most rights

18 non discrim

45 - treaty work and reside and non discrimination

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Notably looking at treaty and regulations: which will prevail according to Barnard

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Treaty...will, of course, prevail – migrant worker can startworking before completing the formalities to obtain any residence certificatebecause the right of residence is a fundamental right

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Main principles in the regulation

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Access and non discrimination

And equal treatment

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WHat is the main access article

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article 3 of the regulation

(a)direct

(b) indirect discrimination

(1)1. Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply:

(a)where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or

(b)where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered.

continued

Front 33

Comv Italy

Back 33

directly discriminatory to require an Italian securityfirm to employ Italian nationals

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Comv France

Back 34

Direct discrimintation

the court said that a French rule requiring a ratio ofthree French seamen to one non-french seaman on a merchant ship contravenedarticle 4(1).

Nb. now nationals of other MS count as "nationals".

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Collins

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Indirect

Theentitlement to a job-seeker’s allowance was conditional upon a requirement ofbeing habitually resident in the UK was indirectly discriminatory. Court:justified. Proportionality left to NC.

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Groener

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Indirect

Dutch woman refused a permanent post at a design collegein Dublin, already been teaching and did not need, as did not speakGaelic. Upheld as government policy to promote the use of Irish language.Requirement for teachers to have an adequate knowledge compatible providedlevel was not disproportionate. (I argued! all teachers having thisrequirement is disproportionate if some had it to a really high standard).Linguistic knowledge could be built somewhere else.

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Angonese:

Back 37

Requiringlinguistic knowledge with specific proof from region of that knowledge and not other knowledge which is obviously sufficient was disproportionate.

Front 38

Bosman:

Back 38

Market access

transfer fee rules for football albeit non-discrimdirectly affected player’s access to employment in other states, unjustifiedobstacle

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Graf

Back 39

market access

too indirect uncertain

compensation on hypothetical event - termination of job not attributable to the individual

(perhaps similar exception to Keck, socialchoice) Graf argued rule in Australian law which required a worker employed bythe same employer for more than 3 years to be compensated on termination ofcontract if dismissed, contravened 45 as discouraged moving as would losechance at compensation.

Deliege (rule not nec social choice but marketmaker) Belgium Judo playing, complaining about Belgium internationalcompetitions rules. Engaged as cross border international professional sport.However rule not breach of market access as selection rules by nature,inevitable and had to limit the number of participant in tournament. Notengaged as a restriction, like Keck, Graf.

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Main Equal treatment article?

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Article 7: Regulation 492/11

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What are the 2 parts to article 7 regulation

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1. general equal treatment for workers

2. same social advantages - social and tax as workers

Front 42

Allueand Coonan

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Indirectlydiscriminatory measure. An Italian law limited the duration of contracts ofemployment of foreign-language assistants, without imposing the same limitationon other workers. Since only 25% foreign language assistants were Italiannationals, law effects other MS nationals. Could not be justified.

Front 43

Schoning

Back 43

seniority rolethat took no account of service performed in another MS, manifestly worked todetriment of migrant workers

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tax academic

Back 44

Difficulty:most sensitive areas of national competence: tax and welfare which the courtmust reconcile with jurisprudence on free movement fundamentalsacrosanct bastions of national sovereignty: Kingston

Front 45

Tax case

Back 45

Wigel:Husband and wife moved to Austria from Germany for Mr’s job, and hefty car taxto be re-registered. Rejected restriction type arguments.

Court: it is truethat the tax is likely to have a negative bearing on the decision of migrantworkers to exercise their right to freedom of movement. (Saegar would have beenenough to breach) however rule applied ‘without regard to the nationality ofthe worker concerned to all those who registered a car in Austria andaccordingly, it is applicable without distinction’. Non discriminatory approach.

Reductionin tax revenue is not justification yet (Bachamnn) the need to preserve thecohesion of the tax system is justification.

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Social advantages - interpreted widely

Back 46

Even,Reina, O’Flynn, Reed

eg maternity leave

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Even

Back 47

All benefits which, whether or not linked to a contractof employment, are generally grantedto national workers primarily because of their objective status asworkers or by virtue of the mere fact of their residence on the nationalterritory and the extension of which to workers who are nationals of otherMember States therefore seems suitable to facilitate their mobility within theUnion”.

Front 48

What does social adv include

Back 48

benefits granted as of right, on discretionary basis, andafter employment termination. Also benefits not directly links to employmentsuch as grants of funding for studies, death benefits.

Focus is perhaps more on integrating worker thanmobility.

Worker AND families.

Front 49

Hartman:

Back 49

Austriancouple, but he works in Germany, could claim German child bearing allowance.Must be real link with society. So full time worker.

Front 50

Hendrix:

Back 50

residencerequirement for a benefit was unlawful. Standard of presumption: territorialsocial benefits is unlawful unless justified.

Front 51

Christini:

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Frenchrailways had a scheme which offered a fare reduction for people with largefamilies. Italian mother who had worked in France. Regardless of specificcontract of employment.

Front 52

Leclere:

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invaliditypension – retained his worker status for, but could not claim for subsequentchild and child birth allowance under 7(2) as no longer a worker. Could notclaim new rights.

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Territorialrestriction is presumptively unlawful (Hendrix, Collins below), it can bejustified by requirement the migrant to show a genuine connection with theterritory of the paying state. (Resident requirements for worker socialbenefits and for job seeker allowances)

Back 53

Presumptivelyunlawful: Dougan: the court is using legal tools and in doing so ‘taking awayfrom the political institutions an appreciable part of their power to decide onimportant questions of public expenditure and social solidarity’.

Front 54

Case - extent workers to jobseekers

Back 54

Antonissen

Front 55

What questions relate to job seekers

Back 55

what benefits apply?

how long can you be a job seeker?

how wide is the social assistance exception?

Front 56

Therefore what benefits apply? to jobseekers

Back 56

Article 45 TFEU (Freedom of movement for workers) applies to job-seekers.

Derogation from principle of equal treatment for job seekers 24(2) Directive

(2) No obligation to provide SOCIAL ASSISTANCE: grantmaintenance aid for studies, including vocational training, consisting instudent grants or student loans to persons otherthan workers, self-employed persons, persons who retain such status and members of their families.

Front 57

How long

Back 57

depending on rule in host state

rule must be more than 3 months

Antoniessen - court said 6 months was fine

asyou can prove that you have a genuine chance of being employed then you cancontinue

you are applying for jobs, application print outs,e-mail correspondence.

Now in: article 14(4)(b) of the Directive: continuing to seek employmentand that they have a genuine chance of being engaged

case by case

Front 58

how wide is social assistance

Back 58

Collins

Vatsouras

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Collins

Back 59

Irish work-seeker who came to UK. A week after claimedjobseekers but turned down as not habitually resident in UK. Work-seekertherefore did not received same social advantages. Court: in the view of theestablishment of the union it was no longer possible to exclude from the scopeof 45 benefits: ‘of a financial nature intended to facilitate access toemployment in the labour market of a state’. Although in this case, the residence requirement, in order to prove a genuine linkbetween the applicant and the employment market, may be accepted only if it isproportionate and open to judicial review.Case bycase.

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Vatsourus 2008

Back 60

Benefitsof a financial nature which, independently of their status under national law,are intended to facilitate access to the labour market cannot be regarded asconstituting social assistance.

While derogation for social assistance, social advantages that are integration measures do not fall within exception - ie jobseekers entitled to

Front 61

Trojani 2004

Back 61

Not worker

and 21 direct effect is not unconditional so needs to have resources

However lawfully resident so could potentially rely on non-discrimination

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Lair 1988

Back 62

Worker could get maintenance loan - equal access

French woman who had moved to Germany where she worked ona series of part-time contracts. Having decided to study for a languages degreeat the University of Hanover she sought a maintenance grant from the Germanauthorities. The court recognised people who had previously pursued aneffective and genuine activity in the host could still be considered workersand so could receive a maintenance grant under article 7(2) on condition thatthere was a link between occupation activities and studies.

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Brown

Back 63

No longer worker - no maintenance loan

Student with dual French and British nationality wholived in France before getting place Cambridge. Sponsored by Ferranti andworked for the company for 8 months before starting course. Then claimed he wasa worker so entitled to grant from British authorities. Refused to recognise asworker as merely ancillary to his studies. No maintenance under 7(2), nor couldhe rely on prohibition on discrim 18. Not worker.

Assistance: maintenance fell outsidescope of treaty.

Left open question of all assistance given to students outsidescope of Union law (income support, housing benefit etc)

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Gravier and

lair and brown

Back 64

1. French national residing in Belgium and wanted to studyin Belgium. Enrolment fee for everyone but those in Belgium was discriminatory.So everyone in the EU pays the same. Though later limited in Lair and Brownwhich highlights fees not maintenance.

2. Students: Maintenance aid was not covered by thisprohibition on discrimination [limited Gravier]

now repealed by Directive 2004/38 (Essentially said samethings anyway). What you need to prove to move to another EU country to study:you need sufficient resources [i.e. don’t be a burden], sickness insurance, andenrolled in a recognised educational establishment. [Now in Art 7 of Directive2004/38]

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Grzelczyk Facts:

Back 65

A French national studying in B supported himself forfirst 3 years as required by the directive. He then applied to Belgianauthorities for a guarantee of minimum income to fund final year. Refused onground not Belgian. Had he been a worker such direct discrimination to socialadvantage would have contravened article 7(2). However national court thoughtnot a worker so the Court of Justice considered position as EU citizen under 21and directive. While the directive requires the student to have sufficientresources to avoid becoming a burden on the social assistance system, therewere no provisions in the directiveprecluding students from receiving social security benefits. Therefore thecourt concluded (21) read in light of(18) precluded Belgium from requiring migrants to be workers before theycould receive the minimex. When no such condition applied to nationals.

Front 66

Grzelczyk case 2001

Back 66

.CJEU said that Union citizenship is destined to be the fundamental status of EUnationals.

Lairand Brown case needs to be reassessed in light of EU citizenship.

Declare on entry but only needed temporary minimal subsistence.

You cannot keep checking then if they have enoughresources. MS may withdraw a residence permit if itconsiders that a student who has recourse to social assistance on longerfulfills conditions of his right of residence. However, need to reconsider inlight of principle of proportionality. NOT AUTOMATIC result [Recital 16 of preambleto Citizens directive: “unreasonable” burden. Could become a “reasonable”burden!].

Front 67

Grzelcyzk - students

similar to Trojani - non economically active

Back 67

Broadenedthe scope of application of the non-discrimination principle under Article 18by interpreting a broad use of 21.

EU citizenship expanded the rights you haveto access social assistance.

Front 68

Bidar 2005

Back 68

Frenchnational lived with grandmother 3 years before Cambridge.

Assistancewith fees was fine: Gravier. Maintenance loan rejected: Brown/Lidar.

When grant was considered for maintenance, based on factnot a student per se, but a resident.

Had come to host state by independent means and 3 years, lawful resident, entitled to equal treatment in respect socialassistance benefits in light of article 18.

Uphold browndistinction between maintenance and fees which require equal treatment. (despite Grezelczyk)

Courtconsidered the fact he had been there 3 years for maintenance rather thanimmediate.

Front 69

Bidar - is confirmed...

Back 69

Now enshrined 5 years 24(2) and upheld

Forster.

Front 70

Directive article 24

Back 70

1 - All eu citizens right to equal treatment

2 - limitations

Member State shall not be obliged to (…) prior toacquisition of the right of permanent residence, to grant maintenanceaid for studies, including vocational training, consisting in student grants orstudent loans to persons other than workers, self-employed persons, persons whoretain such status and members of their families.

Front 71

Forster

Back 71

Germanwoman in the Netherlands who was denied student finance because she had notresided in the Netherlands for 5 years. Only granted to Dutch nationals, or EUcitizens that had resided in the Netherlands for 5 years. To requiresomeone (German woman in Netherlands) to have lived there for 5 years beforeaccess to student finance, was compatible and proportionate to article 18.Because article 24(2) – countries not obliged to provide maintenance grants forstudies. Point to prove certain degree of integration into host MS society. Sofirst permanent residence before grants loans etc. Differentiate case. Witharticle 24.

Front 72

Grezelczyk

Bidar

Back 72

Neverbeen able to have maintenance loan as student, just social security benefits ashad not become unreasonably burden (Grezelczyk) and maintenance loan where hadcome on independent means (Bidar) – 3 years, now upheld as 5 years.

Front 73

Note - Barnard comment on far reaching cases for mobility of workers

Back 73

All this aboutsocial advantages for workers went far beyond what was necessary to ensuremobility of workers. Ever expanding rights to workers and family members. Pavedwave for courts more ambitious jurisprudence for EU citizens who are noteconomically active. As seen.

Front 74

Metock

Back 74

4 men sought asylum in Ireland but their applicationswere rejected. In the meantime, they married EU citizens anyway: (PolishNational) living in Ireland. Those marriages were not marriages of convenience.Arrived in Ireland in 2004 to apply for asylum. Deported to Nigeria Dec 2007. Important question: Does Directive 2004/38 apply even ifthe TCN is irregularly present in the MS? CJEU: It is the right of an EU national to family life,also if their family members are not allowed to stay, then the EU nationalwould have to leave. Family members of a Union citizen who has moved to residein a another MS can stay. Otherwise it would negate this right as he would feelthey would have to leave the EU country.

Remember PSH

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Article 35 Directive:

Back 75

Member States may adopt the necessary measures to refuse,terminate or withdraw any right conferred by this Directive in the case ofabuse of rights or fraud, such as marriages of convenience. Any such measureshall be proportionate and subject to the procedural safeguards provided for inArticles 30 and 31.Marriage of convenience has to be proved by government? - Indicators might bethat you don’t speak a common language, never met each other families. Been onholiday? Lived together? But has to be proved on a case by case basis.

Front 76

Tsakouridis

Back 76

Was born in Germany in 1978. However he was a Greeknational. Sentenced to 6 and 6 months for dealing in narcotics. Germany decidedan expulsion measure to Greece. He brought proceedings before a German Court onthe basis that most of his family lived in Germany. How did the Court interpretthe concept of imperative grounds of public policy under Art. 28? Fight againstdealing in narcotics included in the concept of public security. Balance to bemade between the threat to public security as a result of the personal conductof the person concerned and the risk of compromising the social rehabilitationof the Union citizen in the State which he has become genuinely integrated. Thisbalance is for the national court to make, taking also into consideration fundamentalrights (right to private and family life).

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Gaydarov

Back 77

Bulgariannational convicted in Serbia of the offence of transport of narcotic drugs. TheDirector of the police in Bulgaria adopts a measure which prohibits him fromleaving Bulgaria. He received that decision when he had already returned toBulgaria after having served his prison sentence in Serbia. Gaydarovchallenged this decision in Bulgaria. Gaydarov EU citizen (Art. 21) right to enter intoanother MS or to leave the MS of origin. Directive 2004/38 applies. Right of free movement is not unconditionalbut subject to limitations and conditions. One of those limitation andconditions stem from Article 27 which has direct effect. As a derogation fromthe fundamental principle of free movement of persons, the concept of publicpolicy has to be interpreted restrictively. CJEU rules that the national court will have to seewhether this is in line with EU law by taking into account three elements: 1) the personal conduct of the national as constituting agenuine, present and sufficiently serious threat affecting one of thefundamental interests of society, 2)whether the restrictive measure is proportionate, 3) that the measure is subject to effective judicialreview.

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If direct effect: Damagesavailable

Back 78

Factortame III (conferright, sufficiently serious breach, causal link between obligation on state andinjured parties)Must damages be againstthe state?

Factortame: the defendantwas the state. Viking: may suggest could get damages against a tradeunion.

Raccanelli: Neither article 45nor regulation prescribed a specific measure to be taken by MS or associationsin the event of a breach of the prohibition of discrimination, but it is forthe referring court to assess, in light of the national legislation applicablein relation to non-contractual liability, the nature of compensation.

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National measure: (breach 21, 45, 49, 56)

Back 79

sczc

Front 80

Deportation orders (only can be against migrants)-

Back 80

equivalent to the quantitative restrictions for goods

breach save express derogations: public PSH (policy, security, health)

must be proportionate, compatible with FHR

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Direct discrimination

Back 81

express derogations in treaty -

must be proportionate, FHR

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Indirect discrimination

Back 82

express derogations in treaty + objective justifications

O’Flynn)ie public interest equivalent to mandatory requirements (goods). For example:consumer protection, worker protection and cultural policy which are compatiblewith objections of EU.

must be proportionate, FHR

Front 83

Non-discriminatoryrestriction which impedes marketaccess

Back 83

express derogations + public interestrequirements

must be proportionate, FHR