European Single Market - Assignment Example

European Single Market A. Marie (French) A linguistic competence requirement in Welsh may not be discriminatory, and therefore not a breach of the freedom of movement of workers under EU law, as against Marie, if the school where she applied as a PE teacher uses the Welsh language as its medium of teaching. Article 45 s(2) of the Treaty on the Functioning of the EU provides that the freedom of movement of workers granted to EU citizens under the said law entails the elimination of discrimination on the basis of nationality that can render the purpose of the said freedom, which is mobility within the Union, defeated. However, under Regulation (EEC) No 1612/68 issued on October 15 1968 on freedom of movement, which renders inapplicable statutory, administrative and regulatory provisions that have the effect of limiting the employment of nationals of other Member States and are not applicable to its own citizens or even if applicable but has the chief aim of hindering the employment of the nationals of other Member States, linguistic requirements are held exempted. Put differently, a Member State may require workers from other Member States certain linguistic competence if the same “is required by reason of the nature of the post” (Article 3 s[1]) without violating the rule on national discrimination. B. Greta (German) If Greta is going to teach music within UK providing music lessons to students eight hours a week, she has the right to enjoy freedom of residence albeit temporarily under the Treaty on the Functioning of the EU as a person providing services of profession. Under Article 56 of the said Treaty on the right of establishment, EU citizens have the right to provide services anywhere within the EU even beyond their respective national borders. Services under the Treaty context may refer to either one of the following: activities of an industrial character; activities of a commercial character; activities of craftsmen, and; activities of the professions (Article 57, Treaty on the Functioning of the EU). Greta may come within the ambit of one giving services involving activities of the music profession. C. Costas (Greek) Costas cannot be rejected on the ground that being a postman is an “employment of public service” because it does not entail an exercise, directly or indirectly, of public power or the protection of the interest of the state. Under the Treaty on the Functioning of the EU, the freedom of movement of workers from one Member State to other Member States within the EU is not applicable to public service employment. Article 45, s (d) specifically states that “The provisions of this Article [on freedom of movement of workers] shall not apply to employment in the public service.” The underpinning logic to this provision is believed to be that non-nationals are not expected to serve the State as loyally as its nationals and Member States have been observed to construe this part of the article as widely as possible, specially the phrase “public service,” which is in contrast to the often narrow definition of the ECJ (Aziz 92). The phrase “employment in the public service” as employed in the context of the EU law, which was then embodied in Article 48 (4) of the EEC Treaty, was the issue in the cases of Commission of the European Communities v Kingdom of Belgium [1980] ECR 1473, Commission v France [1986] ECR 1725 and Lawrie-Blum v Land Baden-Württemburg [1986] ECR 2121. In Belgium, the Court defined “employment in the public service” as one which is “connected with the specific activities of the public service in so far as it is entrusted with the exercise of powers conferred by public law and with the responsibilities for safeguarding the general interest of the state, to which the specific interests of local authorities such as municipalities must be assimilated.” In that case, posts such as head technical office supervisor, principal supervisor, works supervisor, stock controller and night watchman with the municipality of Brussels and architect with the municipalities of Brussels and Auderghem were held to be within the ambit of the term but not plumbers and gardeners. In France, nurses in public hospitals are not deemed “employment in the public service” and in Lawrie-Blum, the post of trainee teacher likewise did not qualify as such because it does not have anything to do with the exercise of public power, either directly or indirectly. D. Rosa (Italian) The UK authorities have failed in their obligation under the Treaty on the Functioning of the EU on the freedom of movement of workers because they are depriving Rosa of an opportunity to gain employment by hampering her from going through with the scheduled interview. A Member State may only deprive a person of his or her right to freedom of movement as a worker on the ground of public policy, public security and public health and that is not warranted here. Under the Treaty, a worker enjoys freedom of movement within the EU even beyond the boundaries of the territory of a Member State of which he is a national. A job-seeker is considered a worker in this context for the purpose of giving such person opportunity to seek employment within a Member State of which he or she is not a national. EU Directive 2004/38, which implements and provides guidelines to the implementation of the freedom of movement of EU citizens within the EU limits the period of stay of a national of a Member State in the territory of another Member State to three months, but allows an extension if the visiting national registers in the appropriate government agency. In addition, the aforesaid Directive defers to caselaw when it comes to jobseekers. Several decisions handed down by the ECJ showed the Court’s bias in favour of jobseekers allowing them wider latitude in the freedom of movement. In the case of Ex Parte Antonissen (Case 292/89) [1991] ECR I-745, a Belgian national, Gustaf Antonissen, was deported by the Secretary of State for Home Affairs after having stayed in the UK for more than six months purportedly to find work. When the case reached the Queen’s Bench Division, the latter referred it to ECJ for a preliminary ruling on the issue of whether the local legislature may pass a law requiring a national of another Member State, seeking work in UK, to leave the country in the event that the former has not found work within six months. The Court held that in the absence of Community guidance on the matter (since Directive 2004/38 was only passed in 2004), six months is not an unreasonable period to impose as a limit for job-seekers but if the latter, having reached the six month period of stay without having obtained employment, is able to provide proof that he or she is continuously seeking employment and has genuine good chances of finding one, then the six-month period may be extended. E. Ivo (Bulgarian) As a transient, Ivo is entitled only to a limited period of stay in the UK as granted under a Directive, which limits the period of stay of a national of a Member State in the territory of another Member State. He cannot, therefore, technically prolong his stay beyond the mandatory number of months allowed him under EU law. However, the same Directive defers to EEC case law with respect to cases covering job-seekers. Moreover, the same Directive allows a national of another Member State to resort to mandatory registration option if he is intends to stay longer. Under Article 20 of the Treaty on the Functioning of the EU, all nationals of Member States are automatically granted EU citizenship and as such are granted the privilege to move around the EU and even reside in the territories of Member States. The right of residence in the territories of other states which are Member States is, however, subject to certain conditions and limitations. EU Directive 2004/38 gives EU citizens the right to enter the territories of Member States other than those of which they are nationals without any other requisite except passports or identification cards, a privilege extended to their families who are not EU citizens. However, the visit can last only up to a maximum of three months, unless the visiting EU citizen registers himself with the local authorities. An EU citizen who fails to comply with registration under this Directive will be subjected to penalties. A job-seeker, however, may be entitled to a longer stay as implied by Directive 2004/38 which explicitly makes known its deference to caselaw on the matter. As discussed in the Antonissen case, the requirement of six-month period for jobseekers, although reasonable, cannot be rigidly applied as the limit in allowing an EU citizen to seek employment in a Member State of which he is not a national, where such jobseeker is able to prove that he or she is continuously seeking for a job and there is a good chance that he or she might find one. F. Donald (Republic of Ireland national) As an EU citizen, Donald enjoys the right to seek job in territories of other Member States, including UK. This is because mere previous convictions cannot override that right and Donald’s immediate past and present showed that he has reformed, is steadily employed and no longer poses a threat to public security. Directive 2004/38/EC provides for the basis that a Member State may limit the freedom of movement of nationals of other Member States within its territory with the caveat that such basis may not be used however, for economic ends. Under Article 21(1) of the aforesaid directive, the grounds for such limitation are: public policy; public security, and; public health. The same provision qualifies the use of public policy and public security with the elements of proportionality and personal conduct, stressing that previous convictions are not enough to automatically place an applicant within the ambit of these limitations. For personal conduct to be justifiable as a limitation, it must be a present, authentic and sufficiently serious threat to society. This is not anymore the case here as the conviction of Donald happened thirty years ago and he has since then proved himself reformed. In Criminal Proceedings against Donatella Calfa (Case C-348/96) [1999] ECR 1-11, Criminal Proceedings against Donatella Calfa (Case C-348/96) [1999] ECR 1-11, an Italian national was found guilty under the laws on drugs of Greek and was sentenced to three months of imprisonment and the accessory penalty of deportation and expulsion from Greece for life. Under the Greek law, a national of another Member State found guilty under its drug laws are required to be expelled for life from its territory. The Court held that the Greek law is not valid because it automatically imposes expulsion without taking into account relevant EU laws and Directives requiring consideration of personal conduct in determining limitation of the freedom of movement. Moreover, the Court stated that a previous conviction may be considered only to prove the serious threat presented by allowing a national of another Member State into the territory of another. Works Cited Aziz, Miriam. The Impact of European Rights on National Legal Cultures. Hart Publishing, 2004. Commission of the European Communities v Kingdom of Belgium [1980] ECR 1473. Commission v France [1986] ECR 1725. Directive 2004/38/EC of the European Parliament and of the Council. 29 April 2004. EU Directive 2004/38. Ex Parte Antonissen (Case 292/89) [1991] ECR I-745. Lawrie-Blum v Land Baden-Württemburg [1986] ECR 2121. Moens, Gabriël and John Trone. Commercial Law of the European Union, Volume 4. Springer, 2010. Regulation (EEC) No 1612/68 issued on October 15 1968. Treaty on the Functioning of the EU. Read More