EU Law: Free movement of workers

Directive 2004/38 and Article 39 EC (now Article 45 TFEU)

No definition of a worker; allows the court to give it a broad meaning and means that member states can’t interpret it restrictively. The courts have said that, with regards workers, any definitions should be given their ordinary meanings and that individuals should be doing ‘genuine’ and ‘effective’ work.

Common law definitions of a worker have been set out in Lawrie-Blum, which said that a worker is someone who provides services for another, for a set length of time, in exchange for money; and Levin which said that part time workers may still be regarded as workers as long as the work isn’t minimal or nominal.

Moving in search of work is an issue not covered by Article 39 (now Article 45) but has been dealt with by the common law. The authority of Royer established that there is a right to reside in search of work, presumably drawing upon general citizenship principles of the EU, drawing on Articles 20 and 21 TFEU. Levin was slightly harsher in ruling that citizens should only be granted a maximum period of 3 months in which to work, on the condition that they can provide for themselves, without being reliant on the host member state’s finances. Finally Antonissen was much more generous in ruling that individuals should be granted the right to reside for a sufficiently long length of time, such that they have a good chance at creating a link with the employment market. The current law in this area is that member states must allow a minimum for 3 months residence for EU citizens to look for work, however the UK is more generous and allows 6 months residence.

Public service jobs are not included under Article 45(4) TFEU as MS maintain the right to reserve certain jobs for their own nationals. But Sotgiu said only the court could determine which jobs are ‘public service’ jobs.

Right of residence will be granted where the individual successfully secures employment. A residency permit lasts for 5 years and is renewable. However, failure to find work or a voluntary unemployment will result in a loss or lack of permit, as demonstrated in Williams where the UK national was denied residency in the Netherlands for unemployment.

Right to reside after employment – concerns the retired and incapacitated workers. Those who have retired from work are allowed the right to continue residing in the host member state on two conditions. Namely, that the individual has reached the retirement/national pension age of that member state, and that the individual has resided in the host member state for the last 3 years, the final year of which he was in employment. Incapacitated workers are subcategorised into those who are incapacitated as a result of work undertaken in the host member state, and those who are incapacitated due to a reason unrelated to the member state. If the condition is the result of work in the member state then the individual is automatically entitled to residency for life and a state pension; whereas if the condition is from some other means, the individual must prove that he has resided in the host member state for the last 2 years.

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Dependants of workers have been given rights as an extension of the principle of non-discrimination on grounds of nationality. They are defined in Article 2 Directive 2004/38 to include the following family members: spouses, partners in a registered partnership, direct descendants (children) who are under 21 or who are dependant, and direct relatives in the ascending line including those of the spouse or partner.

Family members does not include co-habitee although in Netherlands v Reed the court made an exception as the national law of the Netherlands did not distinguish between spouses and co-habitees, and therefore they could not deny the right to a non-national where it would have been afforded to a national.

Non-EU national dependants - The case of Metock gave more rights to workers and their families by providing that ANYONE who fell within the scope of Article 2 of the Directive was entitled to reside with the worker, whether they were an EU or NON-EU NATIONAL. Furthermore, it changed the law which had previously required dependants to have prior residence in another member state, and said that the host member state could NOT LOOK AT PREVIOUS RESIDENCE.

The journal by C Costello on Metock said that “...the ECJ’s rights-based approach supports a vision of residence rights in which origins and belonging in the EU are decoupled.”

The journal by S Currie on Metock said that “...the ruling enshrines a more equitable approach to third-country national family members...”

Rights of dependants include the right to EDUCATION, HOUSING, WELFARE and TRAINING. These are particularly advanced by Regulation 1612/68.

Loss of rights will occur either when the worker loses his rights, the dependant is separated from the worker by divorce, or for example the child marrying off.

Death of the worker won’t always result in the dependant losing his rights. He will retain the right of residence if: 1) He had been residing with the worker in the host member state for the past 2 years; 2) The worker was killed by an occupational disease or industrial accident; or 3) He had previously had the nationality of that member state but lost it on becoming a dependant of the worker.

NB: the rights earned in one member state won’t necessarily transfer over if the dependant moves country. For example, pension schemes may be lost on movement abroad.

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Limitations on workers and dependants are on grounds of public security, public health and public policy. They are listed in Article 27 of Directive 2004/38. This means that a citizen may be expelled from the host member state if he threatens any of the above. The authority of Rutili has established that a member state will only be able to export a citizen where “his conduct or presence constitutes a sufficiently serious threat to public policy”. This now codified in Article 27.

Van Duyn demonstrated that a country may only deport or refuse entry to individuals, not groups of people. In this case a member of the Church of Scientology was refused entry based on their beliefs and intention to join other members in the host member state.

Finally, criminal convictions won’t always lead to deportation. In Bonsignore the defendant had accidentally shot and killed his brother with an illegally possessed gun. The courts said his presence did not amount to a threat - unlikely to reoffend. However, in Bouchereau the court said it was legitimate to deport the defendant as he had a long history of drug convictions and had demonstrated a willingness to reoffend.

Article 28 of the Directive provides citizens with additional protection by setting out criteria that a member state must consider before authorising deportation.