European Community Law: Free Movement of Persons - Coursework Example

European Community Law: Free Movement of Persons: Answer for Question Let us assess Selinas prospects for setting up her own consultancy in Denmark. Article 39 of the European Community Treaty of 1957 contains a clause pertaining to "the right to equal treatment in respect of access to employment, working conditions and all other advantages which could help to facilitate the workers integration in the host Member State" (Stewart & Abellard, 2008). But, unfortunately for Selina, Article 39 is applicable only for paid workers and does not cover self-employed personnel. Further, the equal treatment clause contains three sub-clauses related to a) access to employment, b) working conditions and c) social and tax advantages. The main thrust of these sub-clauses is deterring discriminatory practices in favour of the nationals. The working conditions and requisite qualifications for both foreigners and nationals should not be different. Selina has every right under the European Community Law to expect to be treated in exactly the same way as her colleagues who are nationals of Denmark as regards working conditions such as remuneration, dismissal and reinstatement. But she also has to abide by the qualifications set forth by the Danish government. According to the regulations set forth by the European Economic Community on the 15th of October 1968 (Title 2, Article 7): “A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment; He shall enjoy the same social and tax advantages as national workers” (Sieberson, 2004) Hence, it would be unfair for Danish nationals if Selina were to be deemed as sufficiently qualified to run her own fashion business. The European Community Law is unequivocal in its adherence to principles of equal opportunity and treatment for all people within the European Union. The recognition of diplomas and qualifications in all member states is an important tool for promoting greater mobility of workers within the European Union. Article 47 (ex 57) of the European Community Treaty states that “secondary legislation on ‘mutual recognition of diplomas, certificates and other evidence of formal qualifications’ is needed ‘in order to make it easier for persons to take up and pursue activities as self-employed persons’”. Fashion Designing is not a mainstream profession until recently. Hence, it is understandable that the first sectoral directive for specific professions were issued for doctors, veterinary surgeons, dentists, nurses, midwives, hairdressers, architects, pharmacists. All of these could be classified as “essential services/skills” and hence the importance attached to them is understandable. Subsequently, two general system directives were issued – the first on the recognition of higher education diplomas, one on completion of professional education and the second on training of at least three years duration (Directives 89/48 and 92/51). According to Directive 89/48, “a member state has to recognise qualifications obtained in a different member state and has to allow community citizens to exercise their own activities on their territory. The directive applies to all professions requiring higher education which are not taken into account by specific recognition Directives” (Stewart & Abellard, 2008). Since, it is debatable whether Fashion Designing “requires” formal educational qualifications, the 89/48 directive may not apply to Selina. Hence, Selina has a very thin chance for successfully using the European Community Law to challenge Danish rules on qualifications. However, what chance there is, lies in the fact that Fashion Designing is not explicitly mentioned in any of the relevant articles of law. Selina’s counsel might also point out those Fashion Designers ‘do not’ require regular formal college education as other professionals do. Answer for Question 2: One of the cornerstones of the European Community Law is eliminating discrimination on the basis of nationality. The refusal to grant Selina a reduced rent on studio space might seem discriminatory at the outset, but there are complexities involved here. Firstly, Selina’s disqualification is not based on linguistic grounds. Secondly, the same assessment parameters that are applicable to Danish nationals were applied to Selina as well. Hence, there is no scope for Selina to challenge Danish authorities on grounds of discrimination. When new member states were acceded in the April of 2003, certain alterations were made to the regulations governing free movement of persons. The transitional arrangements in the Accession Treaties of April 2003 regarding the new members provide that “for the first two years following accession access to the labour markets of the EU Member States that formed part of the EU before the respective accessions will depend on the national law and policy of those Member States. In practical terms, this means that a worker from one of the Member States that acceded is likely to need a work permit”. But Denmark has been a member of the European Union much before this time and hence this condition is not applicable to Danish labour markets. But nevertheless, the Danish government did make some alterations to regulations pertaining to work permits at the time of these Accession Treaties. According to the new regulations Denmark issued work permits to EU-8 workers, “on condition that their work was full-time and governed by a collective labour agreement or complied with normal standards for the sector/profession” (Stewart & Abellard, 2008). The Danish authorities also ended the practice of conducting an examination of the local market situation before issuing work permits but they still required applicants to be “in possession of a residence permit before starting their employment”. These new rules are actually quite favourable to Selina, in that she is from the United Kingdom (which is part of the EU-8) and that her work is a full-time undertaking. For instance, “Denmark issues work permits for work of at least 30 hours/week and that is governed by a collective labour agreement or complies with normal standards for the sector/profession. Where employers have prior approval, workers may start work upon registration of employment with the Immigration Service without first obtaining a work permit” (Stewart & Abellard, 2008). As for the normal standards relating to the fashion industry, no explicit set of standards have been drawn as of now. Hence, Selina should qualify on the basis of these omissions in European Community Law. While Selina should have an easy passage as far as setting up her Fashion business in Copenhagen, she will not be able to avail of reduced rental prices, for if the authorities concede her this privilege, they would be acting against fellow nationals, which would constitute a variant of “reverse discrimination”. Hence, Selina is best advised not to challenge Danish authorities on these grounds. Answer for Question 3: The European Community Law makes it easy for the spouse and dependents of the candidate with proper work permit to reside with the latter. The following list of relatives and dependents who are allowed to stay with the work-permit holder. their spouse; the partner with whom they have contracted a registered partnership in a Member State, but only if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down by the host Member State; your descendants and those of your spouse or registered partner who are under the age of 21 or are dependants; your dependent relatives in the ascending line and those of your spouse or registered partner (Stewart & Abellard, 2008). Selina’s boyfriend Max does not fall into any of the above mentioned categories, so fails to qualify for residing with Selina on this basis. Nevertheless the European Community Law makes some exceptions, where Member States must also facilitate the entry and residence of “other family members who are dependants or members of your household or who require your personal care due to serious health grounds, and the partner with whom you have a durable relationship, duly attested” (Walters, 2006). If Selina can establish to Danish authorities that she and Max have had a durable long term relationship, then she can accommodate Max in her residence in Copenhagen. These are the various possibilities as far as Max’s candidacy for residence with the work-permit holder Selina is concerned. But Max is a working model himself. If he is sufficiently qualified then he can stake his own claim for right of entry and residence in Denmark. According to European Community Law, the right to reside goes hand in hand with the right to work in another member state. A new Directive has been issued recently, Directive 2004/38/EC, which simplifies the process as a “simple registration with the competent authorities will suffice, and even this will only be required if it is deemed necessary by the host Member State” (Walters, 2006). So Max would not need to have a work permit or a residence permit for staying in Copenhagen. Max’s individual rights as a citizen of a Member State can be classified as worker rights and tourist rights. If Max can find suitable employment in Copenhagen within the first three months of his stay, then his right to residence will accompany his right to work. In the worst case scenario, Max can always fall back on his legitimate status as a citizen of a Member State and hence can stay in Copenhagen as a tourist. Given the fact that he comes from a well to do family background, economic considerations may not be an issue. But, if Max intends to find employment as a model then he has to fulfil the following formalities: “If the employment is expected to last more than three months, the host Member State may require you to register with the competent authority. The deadline for registration may not be less than three months from the date of arrival. In this case, a registration certificate should be issued immediately upon production of a valid identity card or passport and a confirmation of engagement from the employer or a certificate of employment. No other documents (payslips, electricity bills, tax statements, etc.) may be required for that purpose” (Cassese, 2004). If Max fails to comply with these formalities, he could “be liable to proportionate and non-discriminatory sanctions” (Cassese, 2004). Answer for Question 4: The European Commission ensure equal treatment of all nationals and that there is no discrimination during work in the host country. In the case of Max, he has a legitimate right to apply for job opportunities in Copenhagen, if he fulfils all the qualifications required of the Danish nationals. While Max can speak the Danish language, he is not proficient in it. The European Community Law recognizes equivalent qualifications in different Member States, excepting in the area of language proficiency, as an understanding of the local dialect and culture is key to a successful term of employment. Further, “The recruitment of Community nationals may not be restricted in number or percentage nor depend on criteria which are discriminatory by comparison with those applied to nationals. An exception applies for linguistic knowledge: a certain level of language may be required for a job, provided that it is reasonable and necessary for the job in question. While employers (whether private or public) can require a job applicant to have a certain level of linguistic ability, they cannot demand only a specific qualification as proof. Also, the Commissions position is that employers may not subject recruitment of candidates to a mother tongue requirement” (Korver, 2000). This makes it legitimate for the Art School to reject Max’s application for a part-time artists’ model. After all, the Art School management would not have breached the above quoted law in doing so. Firstly, the school is not adopting discriminatory practices; Max’s candidature is dismissed only as a result of a genuine disqualification, namely that of lack of fluency in Danish language. Moreover, the employers are not demanding of Max a particular authorized certification to serve as a testimony to his linguistic ability. The focus of the art school is not on the technical or formal aspects of Max’s qualification, but on the practical side. They would have accepted Max’s application had he been able to speak with his interviewers in fluent Danish, even if he did not have a formal qualification in the language. Finally, the art school management has not brought up the subject of Max’s mother tongue. Hence, the art school has had a legitimate reason for imposing language requirement. And, Max would be advised not to press charges of discrimination or unfair recruitment practices on part of the Art school, as he has a very weak case in support of this claim. References: Cassese, S. (2004). European Administrative Proceedings. Law and Contemporary Problems, 68(1), 21+. Fox, E. M. (1998, Wntr). Antitrust Regulation across National Borders: The United States Boeing versus the European Union of Airbus. Brookings Review, 16, 30+. Korver, T. (2000). Regulating Labour: Employment Policy in Europe. European Journal of Social Quality, 2(2), 58. Sieberson, S. C. (2004). How the New European Union Constitution Will Allocate Power between the EU and Its Member States - a Textual Analysis. Vanderbilt Journal of Transnational Law, 37(4), 993+. Stewart, T. P., & Abellard, D. A. (2008). Labor Laws and Social Policies in the European Community after 1992. Law and Policy in International Business, 23(2-3), 507-591. Vandamme, F. (2000). Labour Mobility within the European Union: Findings, Stakes and Prospects. International Labour Review, 139(4), 437. Walters, W. (2006). No Border: Games with(out) Frontiers. Social Justice, 33(1), 21+. Read More