How ‘Free’ is the Free Movement of Persons in the EU?

Commentary by Gabriella ATKINS

With the date for the EU referendum looming ever closer, I thought it would be pertinent to examine some fundamental features of the EU which prove contentious in debates. Firstly, the right to the free movement of persons in the EU. This is a highly complex issue and space constraints in this article means examination will be limited to identifying who can move within this area of law.

A typical border crossing between two EU Member States which are both part of Schengen - Public domain
A typical border crossing between two EU Member States which are both part of Schengen – Public domain

A fundamental principle of the EU Treaty is the free movement of workers. Note that in order to facilitate the growth and functioning of the single market it is workers, not people, who are entitled to free movement. The primary legislation relating to free movement of workers, their family and Union Citizens is set out in Articles 20 and 45 of the Treaty on the Functioning of the EU (TFEU), supported by secondary legislation in Directive 2004/38 and Regulation 492/2011. However, like all EU legislation, the practice of these general rules must be traced through case law regarding their application.

Article 45 TFEU relates to workers. It consists of four paragraphs:

  • Freedom of movement for workers shall be secured within the Union.
  • Such freedom of movement shall entail the abolition of discrimination based on nationality between Member States
  • It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
    1. To accept offers of employment actually made
    2. To move freely within the territory of Member States for this purpose
    3. To stay in a Member State for the purpose of employment, subject to the laws governing employment in that State
    4. To remain in a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission
  • The provisions in this Article shall not apply to employment in the public service

But what does this actually mean? Typically of EU legislation, it contains a number of elements which require clarification and elaboration. What is a worker? What conditions? What limitations? Article 45 TFEU is supplemented by Regulation 492/2011 and Directive 2004/38 but we must look into case law to try and discover what the rules regarding free movement of workers might be.

To begin, the definition of a worker. In Hoekstra v Bestuur the Court of Justice (CJEU) decided that the definition must be given a Union meaning, but it did not say what. Walgrave & Koch indicated that to be a worker, a person must be in an economic activity having the character of gainful employment, but again what is ‘gainful employment’. In Lawrie-Blum the CJEU laid down three elements which make up an employment relationship: ‘for a certain period of time a person performs services for and under the direction of another person in return for which he receives remunerations’. In Levin the employment of a British national who had been refused entry by the Dutch authorities because her 20 hours a week employment as a chambermaid did not earn enough to meet the Dutch minimum national subsistence rate, was considered. The CJEU held that rules governing free movement of people ‘cover only the pursuit of effective and genuine activities’, but again what is ‘effective and genuine’. Here it was ruled that part-time employment would satisfy the requirements, providing the work is neither nominal nor minimal. Then followed a swathe of cases positing different ‘employment’ circumstances which, whilst not closing down the definition of a worker, at least provided some degree of precedence for national courts to follow.

As can be seen from the discussion above, the implementation of EU legislation in Members States is never as straight forward as simply issuing a treaty, directive or regulation. Interpretation of such documents is fundamental.

Directive 2004/38 is key in outlining the rights not just of workers, but those who may enter and reside with workers. Article 2(2) outlines who constitutes a ‘family member’:

  • A spouse
  • A registered partner, if the legislation of the host Member State treats registered partnerships as equivalent to marriage, in accordance with conditions laid down in legislation of the host State
  • Direct descendants under the age of 21, or dependants of the spouse or partner
  • Dependent direct relatives, or those of spouse or partner

Article 3(2) confers the status of ‘beneficiaries’ on two other categories of people:

  •  Other family members who are dependents or members of the household of the migrant worker whose serious health problems require the personal care of such a person
  • The partner with whom the Union citizen ‘has a durable relationship, duly attested’

Note that these beneficiaries are not family members and would therefore not be entitled to the same rights conferred on family members. A migrant worker therefore has the right to bring those defined as family members and beneficiaries.

Whilst part of the EU, the UK took an 'opt-out' from Schengen and still has very tight border controls - by Gnesener1900, licensed under CC BY 2.0
Whilst part of the EU, the UK took an ‘opt-out’ from Schengen and still has very tight border controls – by Gnesener1900, licensed under CC BY 2.0

A key issue in the UK at the moment is the claim that EU immigrants are a potentially large drain on the resources of their host Member State. Article 7(2) of Regulation 492/2011 allows that a worker who is a national of a Member State ‘shall enjoy the same social and tax advantages as national workers’. This provision has been interpreted widely by the CJEU to confer a wide range of benefits. In Cristi v S.N.C.F it was ruled held that Article 7(2) includes: ‘all social and tax advantages, whether or not attached to the contract of employment’. But how far do these rights extend to the families of workers? Article 24(1) of Directive 2004/38 provides a general right to equal treatment in the Member State. However, this is qualified by Article 24(2)(a) which provides that Member States are not obliged to confer entitlement to social assistance in the first three months of residence or during the longer period allowed to job seekers. It must also be noted that Article 7 of Directive 2004/38 outlines the conditions which govern the right of residence for longer than three months. Under Article 7(2)(b), Union citizens must prove they ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’. Therefore until the point where permanent residency can be granted (generally 5 yrs under Article 16) workers and their families must not be an undue burden on the social system of the host Member State.

Again this is a complicated area of law and this article has only touched on two issues within the wider governance of the free movement of workers. In order to facilitate the functioning of a single market this is a fundamental category which must be protected. Britain cannot feel that it is being ‘hard done by’ as the rules regarding free movement apply equally to all Member States. Furthermore, EU case law can be used to protect the Union citizen in his own Member State against discrimination for exercising his rights under EU law, as in D’Hoop. The EU looks to protect all Union citizens on an equal level, devoid of discrimination.

 

Note: when looking at EU case law, it must be remembered that the CJEU does not decide cases, instead it gives rulings and opinions on questions of law forwarded by National Courts, which they then implement in their case rulings.

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