European Union Law - Coursework Example

European Union Law work Question a) Free movement of workers en s citizens of the member s to look for employment opportunities in other member states other than the home country without needing permission to live there for the purpose. Free movement of workers is incorporated in the European Treaty under article 45(previously article 39) of the treaty, and the law on Free Movement of workers has been further developed by legislations, most importantly by the directives issued by the EC including directive 2004/38/EC on rights to reside1. The definition and the requirement to be categorized as worker in any member state has not been provided by the article 45, and the same has been developed through case law. It is has been held by ECJ that the term ‘worker has community meaning and cannot be defined by the individual member states and the same was allowed then each member state would have its own minimum threshold to define who is a worker such as, the number of working hours worked, minimum wage etc and if the same is allowed the rights would be distinct in each member state which would jeopardize the purpose of having community law.2 It has been held in the seminal Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1045 that in order to establish that a person is a worker it is only necessary to prove that the work carried out by the person is effective and genuine activity, furthermore it was also established that it was not necessary to and relevant that she deliberately took the job in order to get community law rights of residence. In a more recent Case 66/85 Lawrie Blum v Land Baden-Wurttemberg [1986] ECR 2121, the essential characteristics of being a worker were stated as the “performance of service for or under the directions of another, in return for remuneration during a certain period of time3, moreover the fact that he had earned less the minimum wage was not relevant. (Case 139/85 Kempf V Staatssecrretaris Van Justitie [1986] ECR 1741) However it should be noticed that a citizen does not make him/her qualify as a worker for the purposes of article 45 automatically as in the Case 344/87 Bettray [1989] ECR 1621, where it was held that if the primary purpose of the work was social employment i.e subsidized, non economic work by persons who are unable to take work in normal conditions, as in this a drug rehabilitation scheme) it would not constitute genuine and effective economic activity. In the case of Case C-357/89 Raulin v Minister Van Onderwijis en Wetenschappen [1992] ECR I-1027, Raulin’s contract as a waitress provided no guarantee of working hours to be worked, nor was she obliged to heed the employer’s call for her to work and she was paid only for hours actually worked and it was held that even an ‘on-call contract such as this may fulfil the test for a worker’ however in deciding whether the test was fulfilled in a given case, the national court may take into account the irregular nature and limited duration of contract4. If a worker is no longer working then he can under the circumstances listed in Article 7(3), carry on having the status of a worker or self-employed persons. The circumstances are that due to illness/accident he is temporarily unable to work; he is in duly recorded involuntary unemployment after employment of one or more year and is a registered job seeker; he is in duly recorded involuntary employment after fixed term employment of less than a year and has registered as a job seeker and in this case the status of worker would be retained for no less than 6 months; or he has embarked on vocational training. For the purpose of Article 7(3) of directive 2004/38/EC, there is no rule that one can only "register as a jobseeker" by successfully claiming JSA or NI credits.(Case 184/2008 Secretary of State for Work and Pensions v FE [2009] UKUT 287. Question 1(b) In view of the above discussion it could be argued and established that Suzzane is worker under the established principles of article 45 as she was working for Trust Limited for a remuneration to be paid for the number of hours worked on direction of Trust Limited as established above and further more it would be regarded as genuine work as established in case of Lavin even though Suzzane was reluctant to work and was doing so to improve her chances of getting rights under community law. Furthermore the fact that she was only working part-time and the amount of money she was getting paid is irrelevant to establish that she was worker as established above. However Suzzane might have to prove that the work she is undertaking is available in normal circumstances and the work she was doing was non-profit or subsidized work which wouldn’t be available in the normal circumstances though from the available facts it is clear that it is not the case as she was working as a waitress which is not seasonal or a rare work to find however the number of hours she has worked in the past 6 months would also be taken in to consideration to decide if she was worker or not as she has only worked 50 hours. Suzanne can also state that under the provisions of Article 20 she has an unfettered right to reside and move freely within Member States. Article 7(3) would not be relevant in the instance of Suzanne as she is currently working as a call out waitress, busking at the train station as well as giving French lessons. Question 2 Suzzanne could also stay in the member state by utilizing her right to be there under article 39(3) which provides for the right ‘to accept offers of employment actually made’, the mere reading suggest that a person must have already a job offer before travelling to another member state however it has been held otherwise to best achieve the objective of community law by using a purposive approach rather than literal approach in interpretation of article 39(3) as the purpose of Free Movement of Workers was to motivate people to move to work in other member states and if literal approach was to be followed the same would be jeopardized, when people cannot move to look for work5. However it should be noted that the right to reside in another member state given under article 39(3) is not indefinite and it has been held in the Case C-292/89 Antonissen [1991] ECR I- 745, that a reasonable time should be allowed to look for work by the member state and same varies between 3 months to 6 months depending on the member state. Furthermore article 6 of the directive 2004/38 provides that for residence up to three months for EU Citizens and their families no conditions attached other than possession of ID Card and Passport. It should be noted that in Antonissen above, 6 months allowed by United Kingdom were reasonable, however the expiry of reasonable period time limit does not give the member state automatic rights to deport the person looking for a job, if they are actively seeking work and have genuince chance of success to find work, they must be allowed. Its importance is such that it has been incorporated under article 14(4) (b) of the new directive that expulsion of the job seeker or family member if they have chances of success. On the basis of above if suzzane can prove, that she has chances of success to find work she can remain in the member state however from the given facts it is unclear that she is actively looking for more work and she might have difficulties proving the same6. Question 3 Under article 21 suzanne being an Eu Citizen has right to free movement within the member states of EU. It should be noticed at the outset that the citizenship does not allow directly effective right to reside in the member state even though the citizen is residing legally in another member state. The Courts have held that even though a member does not fall under the economic category recognized by EC law, denying right to move freely would be discriminating under article 12 of EC Law(Case 85/96 Martines Sala V Friestaat Bayern [1998] ECR I-2691). However it should also be noted that under the new directive if suzzane is proved to be non economic member for the first five years of her residence she will have to prove the requirements of sufficient resources. However it is pertinent to note that Suzzane will have to prove that denial of right to remain in the country was discriminatory in one way or the other. It is clear from the facts that atleast for the first 3 years and 6 months Suzanne had been working and earning money and even if later on she is unemployed, if she can prove that the same would discriminatory. Bibliography P CRAIG, The evolution of EU law [Oxford University Press, Oxford 2003]. J STEINER and L WOODS, EU law [Oxford University Press, Oxford 2009]. GD BURCA and P CRAIG, EU Law: text, cases and materials [ Oxford University Press, Oxford 2008]. M HORSPOOL, European Union law [Oxford University Press, Oxford UK 2006] J FAIRHURST, Law of the European Union [Longman, Harlow 2010] NG FOSTER, Foster on EU law [ Oxford University Press, Oxford 2009] Read More