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.
_________________________________________________________________________________
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.
_________________________________________________________________________________
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.
