Cross-Border Mobility of Public Sector Workers - Coursework Example

CROSS BORDER MOBILITY OF PUBLIC SECTOR WORKERS Critical Analysis of the ment The public service exception to free movement of workers can be said to be somewhat vague and inconsistent, and therefore not truly effective. In light of the increasingly close working relationship of the Member States with one another, it could even be said to be unnecessary. Introduction One of the basic European integration rules is the rule of free cross-border movement of workers. It is anchored on the principle of non-discrimination of workers on the grounds of nationality. There are four fundamental freedoms created by the EU and which are understood to be observed within the Union are the freedom of movement of (1) people, (2) goods, (3) services, and (4) money (Europa, 2010). The second, pertaining to freedom of movement of people, allows for the employment of nationals within the Union without discrimination as to nationality. There are, however, exclusions from the mandates of this provision, one of which is employment in the public service. This exclusion, however, must be strictly construed, and may only be used if the rights under powers conferred by public law are in fact exercised on a regular basis by holders of such powers, and that said rights and powers do not represent only a minor part of their activities. Legal basis of the public service exception The restriction of mobility of workers in the public service is embodied in Art. 39(4) of the EC Treaty. The provision, back by case law of the ECJ, the authorities of Member States may restrict to their own nationals those posts involving the exercise of public authority and the responsibility for safeguarded the general interests of the State. This is not a hard and fast rule, however, and Member States are not obligated to restrict workers in public service to their own nationals. In short, Member States may permit a greater mobility to migrant workers to avail of positions in their public services without restrictions (Europa, 2006). Other authorities are of the opinion that as a general rule, the right to free movement of workers likewise applies to public service workers, and the exclusion provisions apply as the exception, where the nature of the job falls only within a narrow set of circumstances (Thienel & Böhm, 2006)/ Article 39 of the EC Treaty did not define the term “worker”. In subsequent legal cases, however, the Court interpreted the word as referring to any person who (a) undertakes genuine and effective work, (b) under the direction of someone else, (c) for which he is paid (see case law, Ayuntamiento de Sevilla v Recaudadores de Tributos de las Zonas primera y segunda, digest below). Migrant workers must be accorded the same treatment as nationals of the host country with regard to access to employment, working conditions, and tax and social advantages (Thienel & Böhm, 2006). Under a previous opinion, it was argued that Member States be allowed determination of the meaning of “employment in public service”, an opinion opposed by the European Court of Justice, based on three elements: (1) the rule of priority of community law over domestic law; (2) its direct result, and (3) the necessity of uniform interpretation of community regulations in each of the Member States (Case 152/73 Giovanni Maria Sorgiu v. Deutsche Bundenspot [1974] ECR 153; Wujczyk, 2007:29). In a ruling, the Court of Justice declared that “it is appropriate to examine whether the posts covered by the action may be associated with the concept of public service within the meaning of Article 48(4), which requires uniform interpretation and application throughout the Community” (Case 149/79 Commission of European Communities v Kingdom of Belgium [1980] ECR 3881). Because of the rejection of the institutional definition of public service employment, the criteria therefore have to be evaluated in a case-by-case approach to discern the nature of the tasks and responsibilities covered by the specific post subject of contention. Based on jurisprudence, certain jobs were determined not to be restricted to nationals of the home State. These jobs include postal or railway workers, plumbers, gardeners or electricians, teachers, nurses and civil researchers (Commission of the European Communities, 2002:18). In application of these rulings, the Commission launched an action, the "Freedom of movement of workers and access to employment in the public service of Member States -Commission action in respect of the application of Article 48(4) of the EEC-Treaty" OJ C-72/2 of 18.03.1988. The action focussed on the access to employment in four sectors: agencies and instrumentalities responsible for administering commercial services, public health care services, teaching sector, and research for non-military purpose. The Communication of the EC regarded the sector approach as the important starting point to strengthen the correct application of the EC law. Prior to the 1988 action, numerous infringement procedures were initiated by the Commission. Because of the action, however, Member States took the cue to undertake extensive reforms to open their public sectors. As a result, there were only three infringement procedures that were referred to the Court in 1996. These were Case C-473/93, Commission v Luxembourg ECR [1996] I-3207; Case C-173/94, Commission v Belgium ECR [1996] I-3265; and Case C-290/94, Commission v Greece ECR [1996] I-3285. Inconsistencies The derogation provided by law is very strictly constructed by the European Court of Justice (ECJ). The criteria are therefore applied on a case-to-case approach based on the nature of the tasks and responsibilities that are covered by the post in question (European Commission, 2006). The legal specificities have also caused variations in the application of the provisions in the different Member States. This is because in most Member States, specific rules exist, based on Constitutional provisions, statutes, and presidential decrees, which result in public sector positions being reserved for the Member State’s nationals. The variations across the Member States were summarized by the Austrian Federal Chancellery report in 2006, as follows: In some Member States the national rules include exhaustive lists (Bulgaria, Cyprus, Finland, Hungary, Ireland, Italy, Netherlands, Slovakia, Slovenia, Sweden) or exemplary lists (Estonia, Latvia, Lithuania). In some Member States the rules provide for a general opening of all public sector posts and in order to restrict specific posts to nationals additional application rules are still necessary (France, Portugal, Spain). In some Member States the posts reserved for nationals are decided on a case-by-case basis and mostly the rules provide presumptions and/or criteria and/or guidelines on sectors/ posts reserved, but a case-by-case decision is still necessary (Austria, Belgium, Denmark, Greece, Germany, Malta, United Kingdom). One Member State does not have special rules on this issue, but applies directly Article 39(4) EC and the jurisprudence on a case-by-case approach (Czech Republic). One Member State (Luxembourg) opened to EU nationals only the sectors identified in the Commissions 1988 action, although a certain number of posts published in the annual budget law can be occupied by foreigners (EU nationals or non EU nationals). One Member States still has a nationality condition for all posts in the public administration and uniformed services (Poland), but reforms are under discussion. Case Law The following cases provide some indication of the mind of the ECJ concerning the mobility of workers for the public sector. (1) Colegio de Oficiales de la Marina Marcante Española v Administración del Estado, C-405/01, 30 September 2003 The provision limiting the freedom of movement for workers is valid and enforceable, however this is true only if the public sector post entails a special relationship of allegiance to the State, as well as reciprocity of right and duties that form the foundation of the bond of nationality. In this case, the issue revolved around whether or not merchant shipping captains are considered as employees in the public sector. The ruling states that public service employment necessitates a direct or indirect participation in the exercise of powers conferred by public law and duties, intended to safeguard the general interests of the State or of other public authorities (European Commission, 2010). (2) Commission of the European Communities v Kingdom of Belgium (Société nationales des chemins de fer belges (SNCB 1)), C-149/79, 17 December 1980 This case involved the qualification for employment in the public sector. The qualification is dependent on whether or not the posts in issue are typical of the specific activities of the public service, such that it necessarily includes the exercise of powers conferred by public law and responsibility for safeguarding the general interests of the state. For the exclusion to be valid and the post reserved for the state’s nationals alone, the position should presume to its occupants the existence of a special relationship of allegiance to the state, as well as reciprocity of rights and duties forming the foundation of nationality (European Commission, 2010), (3) Ayuntamiento de Sevilla v Recaudadores de Tributos de las Zonas primera y segunda, C-202/90, 25 July 1991 This case deals directly with the Directive on the harmonisation of laws of the Members States on the matter of turnover taxes; it treats corollarily on the determination of a public servant. The question lies in whether or not local (Spanish) tax collectors appointed by the local authority are considered in public service, or independent operators. The court determined that the collectors’ posts were independent, based on the fact that they are not paid a salary and neither are they bound to the community or the state by a contract of employment. There is no employer-employee relationship with the local authority which makes use of their services (European Commission, 2010). (4) Albert Anker, Klaas Ras and Albertus Snoek v Bundesrepublik Deutschland, C-47/02, 30 September 2003 This case required a determination on whether or not the position of merchant shipping captain may be deemed employment in public service, to come within the coverage of Article 39(4). The merchant ship captain purportedly requires direct participation in the exercise of powers given by public law to safeguard the general interest of the state. The court decided in favour of the application of the provisions on exclusion for merchant ship captain. The ratio decidendi lies in the fact that the job necessarily includes duties that are connected to the maintenance of safety and to the exercise of police powers, especially with regard to the case of danger on board, likewise with the exercise of the powers of investigation, coercion and punishment. Furthermore, the powers are exercised on a regular basis and do not represent only a minor part of the merchant ship captain’s activities. Therefore, the post of merchant ship captain should not fall within the purview of the freedom of movement of workers. (5) Case C-4/91, Bleis ECR [1991] I-5627 The complainant, Mrs. Bleis, brought action on the grounds that the French government discriminated against her employment as a teacher in a French secondary school. The issue for resolution was to determine whether or not employment as a secondary school teacher in French public establishments constitutes employment in the public service for which the exclusion on free worker movement would be applicable. The court ruled in favour of the applicant, that is, that employment as a secondary school teacher in French public educational establishments does not constitute employment in the public service within the meaning of the pertinent article in the EC Treaty. The court based its ruling on the strict interpretation of the provision on exclusion, and noted that the position of secondary school teacher does not come under the qualification that only those whose exercise of powers is conferred by public law and that said occupant performs, in the course of his regular work, duties which are designed to safeguard the general interest of the state or of other public authorities. Therefore, the position of secondary school teach does not come within the purview of the exclusion, and Bleis is entitled to be assigned to her job. (Also the ruling in Case 66/85, Lawrie-Blum ECR [1986] 2121.) Conclusion This paper set out to craft a critical opinion about the following statement: The public service exception to free movement of workers can be said to be somewhat vague and inconsistent, and therefore not truly effective. In light of the increasingly close working relationship of the Member States with one another, it could even be said to be unnecessary. The premise set out by the statement is that public service exception to free movement of workers is vague and inconsistent for which it is deemed ineffective. This premise is worthy of examination. First is to determine whether or not the provision of Article 39(4) is vague and inconsistent. While the statute admits of a lack of definiteness, particularly in the meaning of worker or employment in the public service, then it may be considered true if one were looking for an iron clad definition. However, as is the intention of most laws, the absence of a tighter definition works to the benefit of its application, as the court is free to determine, through judicial determination, the just application of the intent of the law based on the particular details of a case. The intent of the law is clear in Article 39(4), that the exclusion is for the protection of the state. Where the protection of the Member State is not in issue, therefore, there is no reason to exclude other nationals from occupying the position because no real danger accrues to the State. It is obvious, therefore, that whatever further delimitations are missing in the statute do not make it vague and inconsistent. The thread of consistency is provided by the string of consistent judicial decisions that so far have not overturned the critical criteria for determining which jobs are excluded from the free worker movement provision, and which are not. Furthermore, the action taken by the Commission in 1988 which provided for the sectoral definitions of jobs not excepted from the freedom shows that the statute, and the jurisprudence that emanated therefrom, have become effective such that a general rule was arrived at based on the hearings that tested different situations. This provided a firm ground for the application of the statute, through the 1988 action and the earlier court rulings, and for which Member States are now adopting the needed reforms. Returning to the statement subject of this critique, on the conclusion arrived at that due to the increasingly closer working relations of the Member States the provision is unnecessary, this is not true either. Of the four freedoms, the free movement of people is probably the most difficult to convince Member States to implement. This is true particularly of the free movement of workers, and the resolve not to discriminate among nationals. Firstly, the issuance of the directive “replaced a range of complex legislation relating to different categories of beneficiaries, including salaried and non-salaried workers” (Moussis, 2010), for which it has already been deemed effective. Secondly, there will always be a level of resistance, and the most common reason used to justify this resistance would be the protection of the state. It is not farfetched that this reason is even used to justify protectionism of jobs in the private sector – that is, the protection of the national economy being attainable by employing only home-state nationals, or the suspicion of terrorists, or a host of similar justifications. Without Article 39(4), Member States may reserve all public service jobs for its nationals, whether or not the job has any bearing on public policy or state protection. The promulgation of the statute establishes a basis for demanding compliance, while providing for the salient concerns of security and safety of the state. The provision therefore articulates the ground for exception, for which there will always be one, while speeding up the process of adjustment of the Member States towards unification, and the creation of a common labour market (Moussis, 2010). References Biukovic, Ljiljana. Free Movement of Persons/Citizens of the EU. Powerpoint presentation. Faculty of Law, UBC. 2009. Commission of the European Communities. Communication from the Commission, Free movement of workers – achieving the full benefits and potential. [COM(2002) 694]. Brussels, 2002. Commission of the European Communities. Freedom of movement of workers and access to employment in the public service of Member States -Commission action in respect of the application of Article 48(4) of the EEC-Treaty, OJ C-72/2 of 18.03.1988 EurActiv.com. Free movement of labour in the EU27. 20 August 2009. 6 December 2010. http://www.euractiv.com/en/socialeurope/free-movement-labour-eu-27/article-129648 Europa. Achieving the full benefits and potentials of free movements of workers. Europa Summaries of EU legislation. 2006. Europa. Eurojargon. 2010 Accessed 6 December 2010 from http://europa.eu/abc/eurojargon/index_en.htm European Commission. Employment, Social Affairs and Equal Opportunities. Moussis, Nicholas. “The labour market of the EU.” Europedia.moussis.eu. Accessed 6 December 2010 from http://europedia.moussis.eu/books/Book_2/3/6/04/1/?all=1 Thienel, Karin & Böhm, Thomas (eds.). Cross-Border Mobility of Public Sector Workers. Austrian Federal Chancellery, Directorate General III – Civil Service and Administrative Reform. Vienna, Hohenstaufengasse, 2006. Wujczyk, Marcin. “Exception to the Rule of Freedom of Movement for Workers in European Union.” Legal and Social Aspects of Workers’ Mobility, 12-13 April 2007 pp. 28-36. Vilnius University Law Faculty. Legal Cases Albert Anker, Klaas Ras and Albertus Snoek v Bundesrepublik Deutschland, C-47/02, 30 September 2003 Ayuntamiento de Sevilla v Recaudadores de Tributos de las Zonas primera y segunda, C-202/90, 25 July 1991 Case 149/79 Commission of European Communities v Kingdom of Belgium [1980] ECR 3881 Case 152/73 Giovanni Maria Sorgiu v. Deutsche Bundenspot [1974] ECR 153 Case C-4/91, Bleis ECR [1991] I-5627 Case C-473/93, Commission v Luxembourg ECR [1996] I-3207 Case C-173/94, Commission v Belgium ECR [1996] I-3265 Case C-290/94, Commission v Greece ECR [1996] I-3285 Colegio de Oficiales de la Marina Marcante Española v Administración del Estado, C-405/01, 30 September 2003 Commission of the European Communities v Kingdom of Belgium (Société nationales des chemins de fer belges (SNCB 1)), C-149/79, 17 December 1980 EuGH Urteil v. 3.7.1986, Rs. 66/85, Slg. 1986, 2121 - Deborah Lawrie-Blum / Land Baden-Wuerttemberg Read More