European Court of Justice on the Free Movement of Workers - Essay Example

? European Court of Justice on the Free Movement of Workers Art. 451 of the Treaty on the Functioning of the European Union, (under the then Art. 39 of the E.C.), confers upon every person who is a national of the member states, the right to free movement within Europe for the purpose of employment. This essay is a critical evaluation how the implementation of this legislation and the jurisprudence of the Court of Justice of the European Union has been directed at securing the departure of workers from their state of origin and their entry, establishment and integration into the economic and social fabric of the host member state, with special emphasis on the effectiveness of the Regulation 1612/68 and Directive 68/360. This essay first traces the evolution the evolution of the legislation surrounding the free movement of persons in Europe. Thereafter, for the benefit of better understanding, the substantive right to free movement of workers is briefly discussed. The essay also discusses the jurisprudence behind the ECJ in adopting this legislation effectively. This essay will also briefly capture some its landmark decisions, with special emphasis on the application the treaty to private parties and some concluding remarks. Research Methodology To explain the method of this essay it is also significant to stress that the legal method used for this essay. This essay has been written in a critical style keeping in mind the aim as stated in the abstract. Thus the author will attempt to disclose all relevant sources that have been used in order for the reader to make a critical analysis of this essay. Reliance has been placed on various primary and secondary sources. Introduction Art. 45 of the TFEU (ex Art. 38 of E.C.) states: 1. Freedom of movement for workers shall be secured within the Community.2 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:3 (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. 4. The provisions of this article shall not apply to employment in the public service. The freedom of movement for workers is one of the four essential economic freedoms guaranteed under the treaty; namely, free movement of goods, services, labour and capital. This right has both the ‘horizontal effect’ and the ‘vertical direct effect’. This effectively means that a private citizen cannot only move against state or governmental agencies, but also seek redressal for infringement by private and non-governmental persons. (Case C-415/93)4. Historical Background In 1952, the European Coal and Steel Community, (ECSC) contained the first provision with respect to some basic measures aimed at facilitating the free movement of workers within the EU. This provision required the member states to remove any and all nationality-based restrictions for the citizens with respect to employment within the coal and steel industry. However, this provision also stipulated that only qualified workers within the coal and steel sectors were accorded this privilege and not any other skilled workforce. The most monumental development as far the free movement of workers is concerned happened in the year 1957 with the creation of the European Economic Community.5 Art. 39 of the EC Treaty empowered workers within the EC to accept any offers of employment made by any other member state. As a natural corollary, it also empowered such persons to move freely within the EC Community as well as reside and remain within such state for the purposes of employment.6 However, it is also pertinent to note that these rights were accorded with certain reasonable limitations which were duly justified on the grounds of public policy, public security, public health and the like.7 The right was also not applicable in the case of employment in public service. While it is evident that these restrictions are not merely based on purely economic considerations, and also take into account certain sociological elements (such as public employment), the fine print with respect to the restriction is actually contained in the two implicit limitations which have been concealed within the justified ground of public policy. Firstly, the provision does not empower individuals who are not ‘nationals of member states’. Secondly, it is only applicable to workers since the right to free movement presupposes the availability of an employment position.8 Meanwhile, it must also be noted in the same breath that the provision strongly favours the abolition of every form of discrimination, mainly those which are based on nationality among the member state workers in connection with work, pay-scale, and other conditions. Even the Court of Justice (ECJ) has emphasised many times that this provision shall prevail and override every internal norm or municipal law which does not favour any discretion in the successful implementation of any law aimed at abolishing these forms of discrimination. Furthermore, Article 39 of the EC Treaty favours the abolition of every discrimination based on nationality among member state workers with respect to work, remuneration and other work conditions; as the Court of Justice has many times declared (Case 41/74)9, this article, while having an overall effect, prevails over every internal norm and does not leave any discretion in its implementation to member states. The Articles 43-48 (ex 52-58) and 49-55 (ex 59-66) of the EC Treaty give similar rights. On a practical scale, the essential requirements to progressively implement this provision and encouraging the free movement of workers did not take place until the year 1960. Interested workmen were still plagued by the rigmarole of following strict municipal rules with respect to immigration. These workers were not only subjected to national immigration laws but had to also struggle to obtain a work and resident permit.10 The hindrances with respect to movement of workers were prevalent till mid-1968 within the firm grip of stringent secondary administrative legislation with respect to admission, residence, equal treatment11 etc. However, the ECJ has constantly spread the spirit of the provision by emphasizing and guarding the right of personal mobility. The successful implementation of the rights founded in Art. 39 was achieved with the Council Regulation 1612/68 on the October 15th, 1968 concerning the free movement of workers and the Council Directive 68/360 on the same day, regarding the elimination of movement and resident restrictions regarding workers who are nationals of member states as well as their family members.12 Overview of Regulation 1612/68 The Regulation 1612/68 prohibits all discrimination between workers who are nationals of member states based on nationality with respect to remuneration, conditions of work, dismissal/termination, profession of reintegration in case they get unemployed, reinstatement in concerned matters etc. (Art. 7, n.1). These workers were also given the privileges with respect to training in institutes, vocational schools, enjoy all benefits with relation to housing at the same level as nationals. (Art. 7, n. 2, n. 3 & Art. 9, n.1). Arts. 10 and 11 essential provisions with respect to the family members of these workers. These Articles extended the personal scope of free movement to the family members of the workers and also allowed for the possibility of them to reside with him/her and undertake any other sub ordinate activity within the host country. The salient feature in these provisions was that this privilege was even applicable to family members who are not nationals of member countries. While it can be argued that these family rights are derived rights of sorts, since they are based on the relationship with the actual worker, a broader interpretation has been adopted by the ECJ to integrate these individual migrants along with the family where they live. Overview of Directive 68/360: Directive 68/360 directly aims at reducing the stringent bureaucratic formalities regarding moving within the EU considerably. Meanwhile, it also recognises the workers’ and their respective families’ rights to enter into different member states by simply showing an identity card or valid passport, without being forced to show a visa or equivalent requirement (Arts. 2 and 3). The right of residence, which is attested by the issue of the ‘residence permit’ is valid for a minimum period of five years along with an automatic renewal. However, in order to successfully obtain a residence permit, it is mandatory to present a confirmation of engagement or an employment certification (Art. 4). Decisions of the ECJ: Who is a worker? The definition of the term worker which is of central focus in this treaty is of utmost importance. As per the ECJ, the term worker is defined as, “the essential feature of an employment relationship is that for a certain period of time, the person performs services for and under the direction of another person in return for which he receives remuneration.” (Case 66/85)13. According to other landmark decisions of the ECJ, the rights of movement of these workers applies regardless of the vested interests, motives and purposes for which they take up such employment, as long as the work in itself is not solely meant for the process of rehabilitation and reintegration of the workers into the concerned society. (Case 53/81)14. Furthermore, this right is equally applicable to both part-time and full-time workers, provided that the work is genuine and effective (Case C-357/89)15. The right to free movement is also applicable whether or not the worker requires additional financial assistance from the host state (Case 139/85)16. According to Daniel (1998), the very definition of a worker has expanded so that it is intended to include also persons who take up or intend to take up even a subordinate activity for a reduced time period; and also include those who are to be given or could be given a payment inferior even to the minimum payment guaranteed in the sector concerned (Case 53/81)17, as well as persons who take up a paid apprenticeship (Case 66/85)18, who enter university in a member state different from their own after having taken up a job activity (197/86), and seasonal workers (Case357/89)19. Equal Treatment The Court of Justice has held that the principle of equal treatment as enunciated in the above provisions not only barred discriminations directly based on the nationality of the workers but also any other indirect, discreet, hidden form of discrimination founded on other criteria but having the same result20(Case 152/73). In one case, the Court called ‘indirect discrimination’, “the refusal to evaluate the work period21s in public service of a different member state of EU citizen participating in a competition for a university job in Italy” (Case 419/92). Decisions on Work Permits In accordance with the Treaty, when an individual pursues employment for a period of three months or less, then he is not required to posses the mandatory residence permit, provided that his/her presence is notified to authorities.(Art. 4) The residence permit cannot be refused to a worker even if he/she does not comply with the welfare and health regulations of the host country (Case363/89). Moreover, it cannot be withdrawn in case of involuntarily unemployment due to sickness or accident (48/75)22. Enforceability against private parties: The settled position of law with respect to application of the treaty against private parties was laid down by the ECJ in the Roman Angonese Case (Case C-281/98). This case concerned an Italian national who was applying for the inclusion in recruitment competition for a post in a private bank. One of the conditions stipulated by the employer was that the prospective entrants were required to produce a certificate of bilingualism issued by a local authority. Although, the applicant was bilingual and was certified by other agencies, he did not possess the certificate issued by the relevant local authority. His application was rejected on grounds of not meeting the eligibility criteria. The substantive question before the Court was whether community law precluded the requirement of local authority. The ECJ pronounced in a decisive manner that Article 39 had horizontal direct effect (enforceability against private parties). Thus, the Court has held that the prohibition of discrimination based on nationality applies not only to the actions of public authorities but also to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services (relied on Case 36/74). Jurisprudence of the Court behind the decision: Many eminent authors have opined that the ECJ based its decision in the Angonese Case on the sound jurisprudential principles of uniform application of the community law with respect to the principle of non discrimination as well as the doctrine of effet utile in interpreting the provisions in order to provide substance to the letter of the law. (Oberg, 2007; Quinn, McGowan, 1987). Conclusion More than 50 years after the Treaty of Rome, the free movement of workers has become a reality in Europe. It is extremely important to have this section of the society have their voices heard because they contribute as well and must have a freedom of movement. As understood within the scope of this essay, and having examined the substantive provisions, it can be said that the fundamental step towards achieving this goal has been the adoption of Regulation 1612/68 on freedom of movement of workers, as well as the Directive 68/360 on the abolition restrictions on movement and residence for workers of member states and their families. The ECJ has also contributed to the successful implementation of this legislation by promoting free movement of workers through its judicial decisions since 1968. It has done so by specially extending and reinforcing the rights of workers by a liberal and wide interpretation of the Treaty provisions. Even during instances where the law has been silent, the Court has relied on sound jurisprudence to ensure that the rights of these workers are not only enforceable against the state but against non-governmental and private persons as well. Reference List Cases: 1. Union royale belge des societes de football association ASBL v Jean-Marc Bosman, Case C-415/93. 2. Roman Angonese v Cassa di Risparmio di Bolzano SpA, Case C-281/98 3. Hoekstra (nee Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, Case 75-63 4. Kempf v Staatssecretaris van Justitie, Case 139/85(1986). 5. Levin v Staatssecretaris van Justitie, Case 53/81(1982). 6. Bettray v Staatssecretaris van Justitie, Case 344/87(1989). 7. Raulin v Minister van Onderwijs en Wetenschappen,Case C-357/89 (1992). 8. Giovanni Maria Sotgiu v Deutsche Bundespost, (Case C-152/73) (1974) 9. Van Duyn v Home Office [1974] Ch 358 (C-41/74) 10. Lawrie-Blum v Land Baden-Wurttemberg (Case 66/85) 11. Staatsecretaris van Justitie (Case 197/86) 12. Procureur du Rol v. Royer ( Case 48/75) Articles: 1. Quinn, M., McGowan, N. (1987), “Could Article 30 impose obligations on Individuals?”, 12 Elrev.163, p.165 2. Daniele, L. (1995), “Il diritto materiale della comunita europea”, Giuffre, Milano. 3. Daniele, L. (1998), “Pubblica amministrazione e ordine pubblico”, in Nascimbene, B. (ed.) La libera circolazione dei lavoratori, Giuffre, Milano. 4. Oberg, J. (2007), The Doctrine of Horizontal Direct Effect in EC Law and the Case of Angonese. Websites: 1. European Public Policy Blog. 2012. European Public Policy Blog. [ONLINE] Available at: http://googlepolicyeurope.blogspot.in/. [Accessed 05 February 2012]. 2. Central European Journal of Public Policy. 2012. Central European Journal of Public Policy. [ONLINE] Available at: http://www.cejpp.eu/index.php/ojs. [Accessed 05 February 2012]. 3. European Court of Justice rules EU Equal Treatment Directive protects from dismissal for in vitro fertilisation. 2012. European Court of Justice rules EU Equal Treatment Directive protects from dismissal for in vitro fertilisation. [ONLINE] Available at: http://www.equalrightstrust.org/view-subdocument/index.htm?id=103. [Accessed 05 February 2012]. 4. Europedia - Equal treatment for men and women in the EU. 2012. Europedia - Equal treatment for men and women in the EU. [ONLINE] Available at:http://europedia.moussis.eu/books/Book_2/5/13/05/05/?all=1. [Accessed 05 February 2012]. 5. Work Permits and Green Cards in Ireland. 2012. Work Permits and Green Cards in Ireland. [ONLINE] Available at:http://www.movetoireland.com/movepag/workperm.htm. [Accessed 05 February 2012]. 6. Non-EU parents of citizens entitled to residency, court rules - The Irish Times - Wed, Mar 09, 2011. 2012. Non-EU parents of citizens entitled to residency, court rules - The Irish Times - Wed, Mar 09, 2011. [ONLINE] Available at:http://www.irishtimes.com/newspaper/ireland/2011/0309/1224291667585.html. [Accessed 05 February 2012]. 7. Finnish Work Permits - Finnish Residence Permits - Extending a Finnish Permit. 2012. Finnish Work Permits - Finnish Residence Permits - Extending a Finnish Permit. [ONLINE] Available at: http://www.expat-finland.com/moving_to_finland/work_and_residence_permits.html. [Accessed 05 February 2012]. Read More