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EUROPEAN LABOUR LAW IN EUROPEAN LABOUR LAW IN MOTION MOTION

Freedom of movement of persons: Freedom of movement of persons: objectives and challengesobjectives and challenges

Michele ColucciMichele Colucci

E-mail:E-mail:info@colucci.euinfo@colucci.euWeb site: Web site: www.colucci.euwww.colucci.eu

Brussels 22 February 2010Brussels 22 February 2010

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The European Union: The European Union: 493 million people 493 million people –– 27 Member States 27 Member States

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23 official languages23 official languages

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Eight enlargementsEight enlargements

1952 1973 1981 1986

1990 1995 2004 2007

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The treaties The treaties

1952The European Steel and Coal Community

1958The treaties of Rome:

The European Economic CommunityThe European Atomic Energy Community

(EURATOM)

1987The European Single Act:

the Single Market

1993Treaty of European Union

– Maastricht

1999Treaty of Amsterdam

2003Treaty of Nice

2009Treaty of Lisbon (finally entered

info force!)

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Jobs and growthJobs and growth

Challenges: Challenges:

DemographyDemography

Globalisation Globalisation

Solutions: Solutions:

European strategy for: European strategy for:

More research and innovationMore research and innovation

A more dynamic business environmentA more dynamic business environment

Investing in peopleInvesting in people

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The Lisbon Treaty (entered into force on 1 December 2009)

The Treaty will make the European Union:

More efficient Simpler processes, full-time president for the Council, etc.

More democratic Stronger role for the European Parliament and national parliaments, "Citizens initiative", Charter of Fundamental Rights, etc.

More transparent Clarifies who does what, greater public access to documents and meetings, etc.

More united on High Representative for Foreign Policy, etc. the world stage

More secure New possibilities to fight climate change and terrorism, secure energy supplies, etc.

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THE SINGLE MARKET AND THE THE SINGLE MARKET AND THE FOUR FREEDOMSFOUR FREEDOMS

1. Freedom of movement for 1. Freedom of movement for personspersons

2. Freedom of movement for 2. Freedom of movement for servicesservices

3. Freedom of movement for 3. Freedom of movement for capitalscapitals

4. Freedom of movement for 4. Freedom of movement for goodsgoods

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Treaty ProvisionsTreaty Provisions

Art. 18 TFEU: Ban on discrimination on Art. 18 TFEU: Ban on discrimination on grounds of nationalitygrounds of nationalityArt. 20 TFEU: citizenship of the EUArt. 20 TFEU: citizenship of the EUArt. 21(1) TFEU: Free movement and Art. 21(1) TFEU: Free movement and residence of EU citizensresidence of EU citizensArt. 45 TFEU: Free movement of workersArt. 45 TFEU: Free movement of workersArt. 49 TFEU: Freedom of establishmentArt. 49 TFEU: Freedom of establishmentArt. 56 TFEU: Freedom to provide Art. 56 TFEU: Freedom to provide servicesservices

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EC TREATY AND EU EC TREATY AND EU CITIZENSHIPCITIZENSHIP

Every person holding the nationality of a Member State shall be a citizen of the Union. (art. 20 TFEU).(art. 20 TFEU).Every citizen of the Union shall have the right to move and reside freely within the territoryof the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.(art. 21 TFEU).(art. 21 TFEU).

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FREE MOVEMENT OF WORKERSFREE MOVEMENT OF WORKERS

Artt.45 - 48 TFEUArtt.45 - 48 TFEU

Workers have the right toWorkers have the right to::– accept offers of employment actually made;;– move freely within the territory of Member

States for this purpose;– to stay in a Member State for the purpose of

employment;;– to remain in the territory of a Member State

after having been employed in that State..

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Self employed personsSelf employed persons: : – Right of establishment(artt. 49-54 TFEU) (artt. 49-54 TFEU)

andand– Freedom to provide services Freedom to provide services (artt. 56-62 (artt. 56-62

TFEU): TFEU):

the right to take up and pursue activities as self-employed persons and to set up and manage undertakings ..

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Secondary LegislationSecondary Legislation

The original fragmentary legislation:The original fragmentary legislation:- Regulation 1612/68Regulation 1612/68 on freedom from discrimination in on freedom from discrimination in

employment; employment; - Directive 64/221Directive 64/221 on derogation on grounds of public policy, on derogation on grounds of public policy,

public security or public healthpublic security or public health- Directive 68/360Directive 68/360 on rights of workers of their families; on rights of workers of their families;- Directive 73/148Directive 73/148 on rights of the self-employed and their on rights of the self-employed and their

families;families;- Directive 75/34Directive 75/34 on the right to remain after employment has on the right to remain after employment has

ceasedceased

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Secondary LegislationSecondary Legislation

Directive 2004/38Directive 2004/38 of the EP and of the Council of the EP and of the Council of 29 April 2004 on the right of citizens of the of 29 April 2004 on the right of citizens of the Union and their family members to move and Union and their family members to move and reside freely within the territory of the Member reside freely within the territory of the Member StatesStates

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From workers to citizensFrom workers to citizens

WorkersWorkers

Students Students

European citizenshipEuropean citizenship

Third country nationals/non-EU citizensThird country nationals/non-EU citizens

Derogations of rights of free movementDerogations of rights of free movement

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ECJ and Freedom of Movement of ECJ and Freedom of Movement of Persons: Who are Workers (1)Persons: Who are Workers (1)

Concept of Concept of workerworker to be defined to have a Community meaning, rather than defined by national to be defined to have a Community meaning, rather than defined by national laws of MS:laws of MS:

- case 75/63 case 75/63 Hoekstra v. BBDA Hoekstra v. BBDA [1964]: a person who had lost his job, not currently in employment [1964]: a person who had lost his job, not currently in employment but capable of finding another job;but capable of finding another job;

- Case 53/81 Case 53/81 Levin v. Staatssecretaris van Justitie Levin v. Staatssecretaris van Justitie [1982]: a part time worker whose income does [1982]: a part time worker whose income does not provide sufficient support and fell below the nationally recognized minimum wage, provided not provide sufficient support and fell below the nationally recognized minimum wage, provided that the work is “effective and genuine” and not on such a small rate as to be purely marginal and that the work is “effective and genuine” and not on such a small rate as to be purely marginal and ancillary;ancillary;

- Case 66/85 Lawrie-Blum v. Land Baden-WCase 66/85 Lawrie-Blum v. Land Baden-Württemberg [1986]:”the concept must be defined in ürttemberg [1986]:”the concept must be defined in accordance with objective criteria…[t]he essential feature of an employment relationship, accordance with objective criteria…[t]he essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.”direction of another person in return for which he receives remuneration.”

- Case 139/85 Kempf v. Staatssecretaris van Justitie [1986] a part time worker whose income was Case 139/85 Kempf v. Staatssecretaris van Justitie [1986] a part time worker whose income was below the minimum in the host MS and who needed to supplement that income from benefit below the minimum in the host MS and who needed to supplement that income from benefit funds of another MSfunds of another MS

- Case 196/87 Case 196/87 Steymann v. Staatssecretaris van JustitieSteymann v. Staatssecretaris van Justitie [1988]: a work of a member of a religions [1988]: a work of a member of a religions community who perform some household duties even without getting formally paid (only pocket community who perform some household duties even without getting formally paid (only pocket money) has been found to be “economic activity”money) has been found to be “economic activity”

- Case 344/87 Bettray v.Case 344/87 Bettray v. Staatssecretaris van JustitieStaatssecretaris van Justitie [1989]; the concept of worker does not [1989]; the concept of worker does not include a person from one MS who performs work as a part of a drug-rehabilitation program in include a person from one MS who performs work as a part of a drug-rehabilitation program in another MSanother MS

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THE BOSMAN caseTHE BOSMAN casecause C -415/93cause C -415/93

An humble “worker” vs. a strong An humble “worker” vs. a strong systemsystem

Sport= economic activity= Sport= economic activity= the end of the end of transfer compensationtransfer compensation

Quid training ? Quid training ?

The new FIFA regulations on Status and The new FIFA regulations on Status and Transfer of Players Transfer of Players

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EQUAL TREATMENTEQUAL TREATMENT

BAN ON “DIRECT” DISCRIMINATIONS BAN ON “DIRECT” DISCRIMINATIONS Art. 18 TFEU on the basis of nationalityArt. 18 TFEU on the basis of nationalityArt. 45 TFEU:…Art. 45 TFEU:…– Access to employmentAccess to employment– PayPay– Employment conditionsEmployment conditions

Association agreement, Co-operation Association agreement, Co-operation agreement, and so on.agreement, and so on.SPORT: Balog case, Simutenkov, caseSPORT: Balog case, Simutenkov, case

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« COVERT DISCRIMINATIONS »« COVERT DISCRIMINATIONS »

NO « NO « COVERT FORMS OF COVERT FORMS OF DISCRIMINATION” which, by the DISCRIMINATION” which, by the application of other criteria of application of other criteria of differentiation, lead in fact to the same differentiation, lead in fact to the same result . result . (cause 152/73 Sotgiu)(cause 152/73 Sotgiu)

YES, only in case of « objective reasons »; YES, only in case of « objective reasons »; proportionality test!proportionality test!

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THE UEFA HOMEGROWN THE UEFA HOMEGROWN PLAYER RULEPLAYER RULE

THE UEFA HOMEGROWN PLAYER THE UEFA HOMEGROWN PLAYER RULERULE

Homegrown: player trained by a club for 3 Homegrown: player trained by a club for 3 years when he is between 15 and 21 years when he is between 15 and 21 years oldyears old– 2008/20092008/2009 8 up to 258 up to 25

No discrimination on the basis of nationality.No discrimination on the basis of nationality.

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Discriminatory act: Discriminatory act: – ordinary legislation, ordinary legislation, – Collective bargaining agreements,Collective bargaining agreements,– Regulations of private associations,(Bosman, Regulations of private associations,(Bosman,

C-415/93): FIFA, UEFA,C-415/93): FIFA, UEFA,

Limits to free movement:Limits to free movement:– Public administration;Public administration;– Public order and securityPublic order and security– Public healthPublic health

Discriminatory act Discriminatory act and and

limit to free movementlimit to free movement

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ECJ and Freedom of Movement of ECJ and Freedom of Movement of Workers: ScopeWorkers: Scope

““social advantages” attached to employment social advantages” attached to employment (social and tax advantages)(social and tax advantages)Limitation to access to market (extent of indirect Limitation to access to market (extent of indirect and direct discrimination, and direct discrimination, justification of restrictive measures as justification of restrictive measures as appropriate, appropriate, non-discriminatory, non-discriminatory, proportionate, proportionate, justifying mandatory requirements in the general justifying mandatory requirements in the general interest).interest).

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Reverse discriminationReverse discrimination

“ “National law” v. “EU law”:National law” v. “EU law”:– Different scopeDifferent scope– different goalsdifferent goals

EU Law does not apply to purely EU Law does not apply to purely internal matters.internal matters.

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Derogations From Free Derogations From Free MovementMovement

It is for MS to determine concepts of public It is for MS to determine concepts of public policy but limitations on free movement of policy but limitations on free movement of persons has to be based on personal persons has to be based on personal conduct and a present threat and have to conduct and a present threat and have to be proportionate (public policy, security be proportionate (public policy, security and public moral respectivelly in cases and public moral respectivelly in cases 41/74 41/74 Van DuynVan Duyn; case 67/74 ; case 67/74 BonsignoreBonsignore; ; joint cases 115 and 116/81 joint cases 115 and 116/81 Andoui and Andoui and CornuailleCornuaille))

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ECJ and Art. 45(4) TFEUECJ and Art. 45(4) TFEUPublic Service ExceptionPublic Service Exception

ECJ offered narrow interpretation of ECJ offered narrow interpretation of “public service” work and determined that “public service” work and determined that the application of exception would depend the application of exception would depend on the nature of the duties and on the nature of the duties and responsibilities involved at that work, not responsibilities involved at that work, not on the concept of public service (case on the concept of public service (case 149/79 149/79 Commission v. BelgiumCommission v. Belgium))

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Directive 2004/38 Directive 2004/38 ScopeScope

Applies directly only to EU citizens who move to Applies directly only to EU citizens who move to or reside in another MS and their family or reside in another MS and their family members members - The rights of the EU citizen’s family members apply The rights of the EU citizen’s family members apply

irrespective of their nationality as long as the claim of irrespective of their nationality as long as the claim of primary entry and residence right is made by the EU primary entry and residence right is made by the EU citizen;citizen;

- Freedom from discrimination on the basis of Art. 18 Freedom from discrimination on the basis of Art. 18 TFEU transposed so that all EU citizens and their TFEU transposed so that all EU citizens and their families exercising residency rights under the directive families exercising residency rights under the directive

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Directive 2004/38Directive 2004/38

- The rights of the EU citizen’s family members apply irrespective The rights of the EU citizen’s family members apply irrespective of their nationality as long as the claim of primary entry and of their nationality as long as the claim of primary entry and residence right is made by the EU citizen;residence right is made by the EU citizen;

- ““Permanent residence” granted to all EU citizens and their family Permanent residence” granted to all EU citizens and their family members (regardless of their nationality and economic status) members (regardless of their nationality and economic status) who have resided legally in a host MS for at least 5 years (Art. who have resided legally in a host MS for at least 5 years (Art. 16 Directive) 16 Directive)

- Safeguards in relation to MS right to expel individuals on Safeguards in relation to MS right to expel individuals on grounds of public policy or public securitygrounds of public policy or public security

- Freedom from discrimination on the basis of Art. 18 TFEU Freedom from discrimination on the basis of Art. 18 TFEU transposed so that all EU citizens and their families exercising transposed so that all EU citizens and their families exercising residency rights under the Directive are entitled to equal residency rights under the Directive are entitled to equal treatment with the nationals of the host MS (Art. 24 Directive)treatment with the nationals of the host MS (Art. 24 Directive)

- New administrative procedures and requirements related to New administrative procedures and requirements related to reporting requirements and residence cardsreporting requirements and residence cards

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ECJ and EU CitizenshipECJ and EU Citizenship

Application of non-discrimination principle to EU citizens:Application of non-discrimination principle to EU citizens:Case C-85/96 [1998] Case C-85/96 [1998] Sala v. Freistaat Bayers:Sala v. Freistaat Bayers: ECJ, An EU citizen lawfully ECJ, An EU citizen lawfully resident in a MS of which she/he is not a national can rely on the non-resident in a MS of which she/he is not a national can rely on the non-discriminatory provision of Art. 18 TFEU in all matters falling within the discriminatory provision of Art. 18 TFEU in all matters falling within the scope of application of the Treatyscope of application of the Treaty

Case C-184/99 [2001] Case C-184/99 [2001] Grzelczyk v. Centre PublicGrzelczyk v. Centre Public: ECJ, EU citizens-: ECJ, EU citizens-students, lawfully residing in another MS, not to be discriminated against on students, lawfully residing in another MS, not to be discriminated against on the basis of their nationality when considered for welfare benefits the basis of their nationality when considered for welfare benefits

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SOCIAL SECURITYSOCIAL SECURITY

Regulation 1408/71Regulation 1408/71

Regulation 883/2004 (the Basic Regulation 883/2004 (the Basic Regulation) ('BR')Regulation) ('BR')

The New Implementing Regulation The New Implementing Regulation 987/2009 ('IR')987/2009 ('IR')

Both Regulations of equal valueBoth Regulations of equal value

Cannot apply one without the otherCannot apply one without the other

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Basic Principles of Basic Principles of Social Security CoordinationSocial Security Coordination

Article 42 EC: Article 42 EC: aim to ensure citizens do not lose social security aim to ensure citizens do not lose social security rights when they moverights when they move

Equality of treatment regardless of nationalityEquality of treatment regardless of nationality

Legislation of only one Member State applies at any one Legislation of only one Member State applies at any one timetime

Periods of insurance acquired in different Member Periods of insurance acquired in different Member States can be aggregatedStates can be aggregated

Benefits can be exportedBenefits can be exported

But also Health insuranceBut also Health insurance

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MUSTMUST

UpdateUpdate

SimplifySimplify

ClarifyClarify

Improve protection of citizens’ rightsImprove protection of citizens’ rights

Strength and Streamline institutional proceduresStrength and Streamline institutional procedures

Enhance CooperationEnhance Cooperation"Clear and more effective cooperation between social security institutions "Clear and more effective cooperation between social security institutions is a key factor in allowing the persons covered by regulation (EC) is a key factor in allowing the persons covered by regulation (EC) 883/2004 to access their rights as quickly as possible and under optimum 883/2004 to access their rights as quickly as possible and under optimum conditions"conditions"

[Preamble of the NIR, second paragraph[Preamble of the NIR, second paragraph ] ]

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Some remediesSome remedies

Train the PersonnelTrain the Personnel

Make sure thaty they know languages and Make sure thaty they know languages and proceduresprocedures

Provide more and better information to Provide more and better information to – CitizensCitizens– Public and private institutionsPublic and private institutions

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FOR A REAL FREEDOM TO FOR A REAL FREEDOM TO CIRCULATECIRCULATE

What can I (EU citizen) do?What can I (EU citizen) do?

Preliminary question to the Court of justicePreliminary question to the Court of justice

Written question via an MEPWritten question via an MEP

Petition to the EPPetition to the EP

Complaint to the European CommissionComplaint to the European Commission