European court of justice on the free movement of workers - Essay Example

?a LAWI002- EUROPEAN LAW European Court of Justice on the Free Movement of Workers 10106 John Sawyer Assignment Assessment Type: Individual Essay (60% of Total Course) Length: 2,506 Abstract The 1957 Treaty of Rome established cooperation amongst some six European nations which led to the formation of the European Economic Community, a supranational body meant to enhanced the creation of a common market and promote the rights of citizens of member states12. Member states agreed to cede some elements of their sovereignty to the European Commission and in return, acquired some rights and freedoms for their citizens through a common market with several flexibilities in international matters3. Amongst the freedoms that the EC Treaty guarantees is the free movement of persons, services and capital under Article 39 of the EC Treaty4. Since the European Community was neither a federation nor a nation, the application of the EC Treaty had some challenges which have been modified through a number of treaties that made it more appropriate and practicable in application5. This include the Treaty on the Functioning of the European Union. There are some cases that the law of member states interacts in a complex manner with EU Laws6. The evolution of the Freedom of Movement in the European Community is steeped in Article 39 of the TFEU which prevents all forms of discrimination against citizens of member states who move to other EU nations7 The legal preamble is provided by Regulation 1612/68 of the Council which forbids specifies the types of discrimination that must be avoided8 Other supporting regulations like the Directive 68/360 supports the easy entry of EU nationals into other nations in the Union. European Court of Justice cases have helped to outline major terms in the Laws relating to free movement like 'worker' and 'equal treatment'. This have laid precedence on the core definitions and application of the laws on the Free Movement of Persons in the European Union. Introduction The Free Movement of Persons in member states of the European Community is one of the 'four freedoms' envisaged in the original 1957 Rome Treaty9. The free movement of persons is one of the most fundamental components that are central to the success of the creation and sustenance of a common market10. The laws on the freedom of movement in the European Community allows the settlement and integration of citizens of member states into other member states11. This include the right not to be discriminated against on the grounds of nationality12, the right to seek work and remain a worker in another Member State13, the right to receive and provide services14. These come together to create a framework for the operation of the laws on the freedom of movement of persons across the European Union. Currently, these EU legal standards provide the broad framework that determines the scope and application of the laws on the mobility of labour between member states15. The European Court of Justice has interpreted the standards and frameworks on the EU rules on freedom of movement16. These have created precedents that have restricted the scope of the free movement of persons17. Thus some elements of Article 45 of the TFEU have been tested and ambiguities clarified18. The European Union freedom of rights of movement is guaranteed by Article 45 of TFEU19. It is a convergence point that integrates other legal instruments in the European Union which prevents all forms of discrimination in relation to employment of EU nationals in member nations in relation to remuneration and other conditions of work are abolished20. These laws guarantee EU national’s rights to settle, work and integrate into other member states21. The main limitation of the application of this law is that the freedom of movement and the right to employment does not apply to the public service of any member state22. This is one of the indicators that the law supports a degree of subsidiarity and allows member states to retain some level of autonomy. On the other hand, the law has direct effects horizontally and vertically23. This implies that individuals can assert their rights to this law against other citizens and elements of the private sector as well as against governments of EU member states24. As will be explained later in this paper, the horizontal and vertical application has allowed people to take action individually and collectively against governments and private sector entities. Evolution of the Law on the Mobility of Labour in the European Union The European Coal and Steel Community (ECSC) came to force in May 1953 and was meant to establish a common market and grow trade and employment across borders25. This treaty led to the impetus for the need for the facilitation of employment in the coal and steel industries to help improve the standards of living of people in the EU. The provision led to the free movement of products and the ban on discrimination against nationals of other member states in the coal and steel industries26. In 1957, the free movement of persons and workers across national borders in Europe was adopted by the nations of Western Europe when the European Economic Community was formed by the Treaty of Rome27 . This was instituted in Art.39 of the EC Treaty of the European Community and enabled citizens of member states to reside within other member states for the purposes of employment.28 This laid the foundation for the free movement of persons albeit some elements of friction and disagreements existed about how to implement the article in certain nations. Such disagreements led to some cases which were sent to court. In the Royer's case, it was established that members of every member state of the European Union can enter and access economic opportunities without hindrances from the authorities of the member state29. The main restriction that comes up with the treaty is that a person might be denied access to economic opportunities in another member state if there are justified concerns on the grounds of public policy, public security, public health and other situations that threaten the public of the host state.30 This gives the nation some rights under the subsidiariy principle31 Secondly, exercising the right to free movement is dependent on the availability of an employment or business opportunity that a person is suitably qualified for32. There Treaty of Rome established a common market which can only work well if discriminations against citizens of other member states are abolished33. This is because the prevention of the movement of member states will stand in the way of the the promotion of a single market and the enhancement of competition, political interdependence and improvement in the EU34. In Van Duyn V Home Office35 it was held that Article 39 of the EC Treaty abolishes every form of discrimination directed at workers from other EU Member states. Other provisions in the EC treaty give rise to a non-discretionary implementation of the anti-discriminatory laws of the EC Member States36. The implementation of Article 39 and supporting laws on the freedom of movement went through a number of amendments after the enactment of subsidiary laws. For instance, until 1960, most foreign nationals had to struggle to acquire immigration and relevant work permits37. These hindrances prevailed until mid-196838. The European Court of Justice was called to play on several occasions until some regulations were enacted to support it. However, the ECJ has constantly spread the spirit of the provision by emphasizing and guarding the right of personal mobility39. The Council of Europe issued 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.40 This paid the foundation for the prevention of discrimination against persons and their relatives who moved to other member states for employment purposes. Legal Preamble Overview of Regulation 1612/68 & Discrimination against EU workers and their families Regulation 1612/68 prohibits discrimination targeting workers who are nationals of member states41. This prevents discrimination in areas of remuneration, conditions of work, dismissal/termination, profession of reintegration in case they get unemployed, reinstatement in concerned matters amongst others42. 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 nationals43. This provision encourages the entry and establishment of workers from other EU member states into other nations without hindrance. It promotes equality and enhances the fundamental human rights of such persons. This include some of the citizens of relatively new member states like Poland, Latvia and Croatia who joined the Union in 200444 There are also residential provisions in this regulation that are relevant to the family members of an EU national working in another country45 It enables family members of such people and people in other relationships with such persons to access important rights against discrimination. This European Court of Justice has acknowledged the importance of family rights as derived rights which helps in the integration of a an EU migrant worker in another member state46 Overview of Directive 68/360 & Entry of EU Citizens to other Member States: Directive 68/360 directly aims at reducing the stringent bureaucratic formalities regarding foreign workers and their family members. According to the directive, citizens from other EU nations can enter other member states by showing a valid identity card or a valid passport without having to go through visa formalities for a limited period of 3 months47. Family members of such workers simply have to show a valid ID or a passport [if they are non-EU citizens] and from there, they will be granted entry into the nation in question (Arts. 2 and 3). This supports the entry of EU citizens into other member states for the purposes of work. The fact that their family members can join them attests to the fact that such persons can easily leave and settle in foreign EU nations. Jurisprudence from the European Court of Justice The applications of the EU Treaties and Directives on the migration of foreign workers have not been without their challenges48. The definition of the term worker is highly crucial for the fair resolution of cases in this matter. This is because the conflict between subsidiary and proportionality or the observance of fundamental human rights requires an attempt to prevent the misuse of the right to freedom of movement by people who do not qualify under the Treaty49. This essentially forms the criteria for the definition of persons who qualify to migrate and settle in other member state for work reasons. In an attempt to define the term 'worker', the ECJ stated in Lawrie-Blum v Land Baden-Wurttemberg50 that, “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.” This shows that a worker is one who has some form of agreement with another to provide a given service in return for some kind of compensation. In this sense, if anyone has a work relationship with another party in another member state, that individual can depart his/her home country, enter the other country and will qualify to access the rights under the Article. In Levin v Staatssecretaris van Justitie the ECJ identified that 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 society51. This right is equally applicable to both part-time and full-time workers, provided that the work is genuine and effective52. Also, in Raulin v Minister van Onderwijs en Wetenschappen53 it was identified that the right to free movement is also applicable whether or not the worker requires additional financial assistance from the host state. The very definition of a worker has expanded so that it is intended to also include 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 concerned54, as well as persons who take up a paid apprenticeship55, as well as a person who enters a university in a member state that is different from their own after having taken up a job activity (197/86), and seasonal workers56 Equal Treatment The Court of Justice has ruled in cases that show that discrimination against workers from foreign member states is barred in both direct and indirect forms. Indirect discrimination includes discreet actions and hidden forms of discrimination founded on other criteria but having the same result57. In Giovanni Maria Sotgiu v Deutsche Bundespost the Court categorized the refusal to evaluate the work period of a foreigner from an EU nation a form of indirect discrimination58. Decisions on Work Permits The Treaty states that when a person gets a job in another nation and remains employed for three months, such a person is automatically entitled to get a residence permit.59 In Roux v Belgian state, it was held that a residence permit of someone with three months paid employment cannot be rejected even if that individual does not comply with the welfare and health regulations of the host country60. When such a permit is granted, it cannot be withdrawn if the individual in question falls sick or is involved in an accident61. Enforceability against private parties: As stated earlier in this essay, the applicability of the right to freedom of movement in the European Union has both horizontal and vertical application62. In the Roman Angonese Case63 an Italian national was seeking inclusion in a recruitment drive for a position in a private bank in a foreign member state. A major criterion was bilingualism and although the Italian national was bilingual, he was not accepted. This was declared illegal under the freedom of movement provision. The ECJ held that Article 39 had horizontal direct effect which made it possible for the rule on the freedom of movement to be enforced on private parties64. The Court set the precedence that the prohibition was based on discrimination and as such, the aggrieved party had the right to request for the rules on freedom of movement to be applied65. In Walrave and Koch v Union Cycliste Internationale it was held that discrimination based on nationality could be invoked when there is evidence that the nature of a given requirement is meant to create a collective system of excluding certain people from a given benefit that restricts their right to access the freedom of movement provisions66. Conclusion The Treaty of Rome had an inherent element of the free movement of persons. This has been developed over the years to create a system whereby member states are allowed to move to different EU nations to access job opportunities. This is enshrined in Article 39, 48 and 52 of the treaty and it is modified by Article 49 of the Treaty of the Functioning of the European Union. The Regulations 1612/68 and Direct 68/360 allows citizens of member states to move to other nations to seek jobs on a three month entry principle. They therefore need a valid ID to enter other nations in search of work. The EU Laws also grant rights to the families of individuals who travel to seek work in other nations. This ensures that such persons enter the nations with the right background to integrate into the community in question. The European Court of Justice has defined 'work' for the purpose of the right to freedom of movement to include seasonal jobs, part-time and full time jobs as well as the right to access university education. Also, there have been numerous laws that ensure that direct and indirect discrimination against persons from other EU nations are avoided. Finally, these rights can be asserted by foreign EU nationals against private and public entities. The main restriction of the right to freedom of entry of EU nationals to other member states is the case where there is credible evidence that a person might be a menace to the society. 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