Free Movement of Workers

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The issue of Free Movement of Workers is central to the elimination of one of the barriers to the internal market, which as an essential basis for the European Community, is a matter of considerable debate. In determining which appears to be the prevailing interpretation, we will have to regard Article 39 of the Treaty governing the Free Movement of Workers. There will be an examination of cases and integration of political, social and economical context of the European Union with reference to the free movement of workers.

It is submitted that although there is some evidence in support for a narrow interpretation, the conclusion made in Antonissen appears to be the prevailing view.

Free Movement of Workers

Article 18 is the primary right to free movement for citizens of the Union, subject to the ‘limitations and conditions’ of the Treaty and secondary legislation. Article 39 refers to the free movement of ‘workers’. Article 39 (1) provides the principle of freedom of movement for workers shall be secured in the community. Article 1 of Regulation 1612/68 refers the right to take up an activity as an employed person.

The definition of Worker

European Court of Justice has placed a ‘purposive’ interpretation of a worker, as in Case 53/81 Levin; the ECJ attempted to lay down a definition but created essential characteristics from the Levin case. This was the occupation must not be ancillary or marginal however must be genuine and effective. The treaty had not defined the definition of a worker but in Case 75/63 Hoekstra1 definitions of worker in member states were not appropriate, nevertheless they must be a national of the European Union.

Case 66 / 85 Lawrie-Blum2 defined objectively a worker and it was stated ‘The performance of services for and under the direction of another in return for remuneration’. A worker who had lost her job but was capable of finding another one (Hoekstra) was protected under Article 39. A part time worker provided the work was ‘real’ work of an economic nature and not nominal or minimal: Case 53/81 Levin v Staatssecretaris van Justitie3 even if income is supplemented by recourse to public assistance Case 139/85 Kempf v Staatssecretaris van Justitie4. A member of a religious community paid ‘keep’ and pocket money but not formal wages where genuine commercial activity is an inherent part of membership: Case 196 / 87 Steymann (1988)5.

However in Case 344 / 87 Bettray v Staatssecretaris van Justitie6, ECJ held that activities which represent ‘social employment’ did not constitute to genuine employment. However in Trojani (2004)7, ECJ held a generous view with regards to social employment, although the judgment distinguished in Bettray (1989), the ultimate decision was whether or not a person is qualified as a worker, is a question for the national court to decide. An individual on a ‘personal re-integration programme’ if the work ‘real and genuine’ and part of the ‘normal labour market’ (Case C-456/02 Trojani v Centre public d’aide social de Bruxelles, judgment of 7 September 2004) is classified as a worker under Community Law.

Work Seekers

It is in Article 39 (3) which provides the freedom of movement for workers to ‘offers of employment actually made’. It was uncertain whether the provision of this Treaty protects an individual who migrates to look for work rather to offers of employments actually made (subject to narrow application of Article 39). However in Case 48/75 Procureur du Roi8 the Court of Justice applied Article 39 (3) widely and it was permitted by the ECJ that work seekers were entitled to enter another member state prior to actively looking for work. Although this was decided, the courts did not decide how long this right was to continue. It was Antonissen that the courts held six months was a reasonable period of time, but a jobseeker may be worker but not indefinitely9. However in Commission v Belgium10, ECJ held that three months was also reasonable, provided it can be extended if the work seeker has genuine chances to do so.

It has been clarified that work seekers are entitled to entry of another member state. But ECJ has confirmed that work seekers have limited rights of residence and will not have the benefits that full worker status has. The current legislation continues to require an economic element either direct or indirect. The economic element for non workers lies in the fact that the citizens of the Union have a right to move freely, only if they do not require social assistance from the host member state. Oliveira (2002)11 points out it is still very much dependent on the enjoyment of ‘a degree of financial self-sufficiency’ in other words carrying out an economic activity or being in possession of sufficient resources.

The court is not willing to impose on Member State the duty to finance the integration in its labour market for unemployed EU citizens. Account must be taken of considerations such as length of residence on territory, age, health, economic situation, social and cultural links integration and links with country of origin. In Case 316/85 Centre Public v Lebon(1988) it was held that an individual seeking work has a right to equal access to employment under Article 39, but no right to social and tax advantages. This discrimination inhibits partial restriction to the free movement of workers. Because work seekers are not entitled to the full benefits enjoyed by full worker status, it is only necessary that the work seeker is to find employment, unless the work seeker has enough financial capital to reside in another Member State. Therefore we can claim that this is contrary to Community law on the provisions of free movement of workers under Article 39.

The ruling in Antonissen as Robin White12 so aptly remarks ‘seems a fair response to a tricky issue.’ (White 1992) In essence White argues that the ‘decision permits a reversal of the burden of proof of intent’. His argument reflects the provision of Article 39. The widest interpretation implies that all EC citizens have a right to enter a Member State and search for work. Indeed the sole purpose of the four freedoms established in European Law was for solely economic purposes (subject to the narrow interpretation of Article 39 (3) for employment purposes only). Nevertheless Advocate General Trabuchcchi in Case 7/75 F v Belgian State13 had stated that migrant workers are not regarded by Community law as sources of labour but as human beings. It is convincing that in this ruling it is not contrary of Community law regarding the free movement of workers to allow deportation of a national from another member state.

What mechanisms are available to member states? It appears that member states maybe able to exercise certain protective legislative measures to prevent the abuse of the system of member states to the host state. However these preventative measures need to acknowledge and allow the rights of a citizen of a member state enjoys under the free movement of workers directives and agreements. The freedom of movement of workers is subject to limitations on the grounds of public policy, public security and public health (EC, Art 39 (3)). States can remain free to deny entry and in Van Dyun v Home Office (1974), it was regarded that the definition of public policy can differ in Member States. Referring back to the ruling in Antonissen this illustrates that it is not contrary to Community law however it is for the discretion of Member States regarding this matter. The derogation grounds on public policy, health and security in the Directive 64/221 are important principles and as they do differ in member states the restriction is applied narrowly as seen in Case 115, 116/81 Adoui & Cornaille v Belguim14.

The individuals past criminal convictions cannot in themselves constitute grounds for any public policy measures (art 3(2), Directive 64/221), and this was the case in Antonissen, however in Bouchereau15 the freedom of movement of workers was refused because it was held that he had convictions which was a genuine threat to society.

Conclusion

It seems that the right to enter a Member State in search for work is available to all EC citizens. The ECJ has interpreted Article 39 wide; the narrow interpretation of Article 39 (3) refers to free movement of workers to ‘offers of employment actually made’. However since the ruling in Royer and further in Antonissen has created the right to enter a Member State in search for work, broad fundamental rights has derived from the Treaty itself (Article 39). The EC citizen who entered the territory of another member state in order to seek employment shall not be expelled for as long as the EC citizen can provide evidence that they have genuine chances of finding a job (article 14 (4). So the status of a job seeker is recognised by directive 2004/38 but duration of that right is not measured in years or months.

It is submitted that although there is some evidence in support for a narrow interpretation, the conclusion made in Antonissen appears to be the prevailing view.

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