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European Labour Law Lecture 03A

European Labour Law Lecture 03A. 3.1. Free Movement of Persons 1. Announced in art. 48 Treaty of Rome 1957 Gradually introduced between 1957-1968 Fully established in 1968 by Reg. 1612/68

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European Labour Law Lecture 03A

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  1. European Labour Law Lecture 03A

  2. 3.1. Free Movement of Persons 1 Announced in art. 48 Treaty of Rome 1957 Gradually introduced between 1957-1968 Fully established in 1968 by Reg. 1612/68 The caution not to open the labour market too abruptly was repeated by way of transition periods - in the 1980s on the occasion of the accession of Spain, Portugal and Greece, - also after 2000 on the occasion of the accession of the Central and Eastern European States, - but not on the occasion of the accession of the richer states (Britain, Ireland, Denmark, Sweden, Finland and Austria)

  3. 3.1. Free Movement of Persons 2 Legally a transition period means, that MS during a maximum period may maintain existing restrictions (they also may renounce of it!!), but they may not introduce new restrictions. The transition period vis-à-vis the 10 entrants of 2004 is over now. That vis-à-vis Romania and Bulgaria may last until 2014. Actually The Netherlands and Spain still maintain restrictions as regards Romanians and Bulgarians. And Italy???

  4. 3.1. Free Movement of Persons 3 In 2011 Reg. 1612/68 was replaced by Reg. 492/11 (not much different from the old one!!). The right of entry, the right to stay and the right to leave were initially laid down in Directive 68/360/EEC, now in Directive 2004/38/EC. This Directive became very important on two issues • Who are the family-members to enjoy this right together with the primary person (ECJ case law on homosexuals, concubines etc) • What about unemployed persons? Can they enter? Can they stay?

  5. 3.1. Free Movement of Persons 4 The Contents of the Free Movement of Workers regime (see Reg. 492/2011/EU, art. 1-10) Equal access to jobs Equal treatment in working conditions Equal social and tax advantages Equal access to training Equal trade unions rights Equal right to housing Equal right on education for their children.

  6. 3.1. Free Movement of Persons 5 All this “equality” not only in the laws of the state, but also in collective agreements, individual contracts of employment, rule books, customs and practises, etc. All inequality is null and void. ECJ came to some stunning applications of these prohibitions of inequality especially in the sphere of the equality in social advantages: railway fares, museum tickets, housing, etc. Also a range of cases on the entitlements to scholarships for the children of migrant workers.

  7. 3.1. Free Movement of Persons 6 Main limitation: State A may deny a social advantage to a person living in State B and working in State A only on a small job (ECJ 18.7.2007, case C-213/05 (Wendy Greven). Obviously this emphasis on “equality” has caused the CJE to develop a consistent line of case law on discrimination in this field, now re-enforced by art. 18 TFEU. - All direct discrimination is prohibited - Also indirect discrimination is prohibited unless it can be objectively justified.

  8. 3.1. Free Movement of Persons 7 The Free Movement regime was initially only created for workers; self-employed could benefit from the Free Movement of Establishment and of Services (old art. 52/59 EEC, now art. 49/56 TFEU). The regime was immediately also applied to family members, the circle of which has been extended in later years. Ever since the free movement have been extended to all citizens of MS, so also to students, pensioners and economically non-active citizens – it is now a free movement of persons. The Directive on entrance/stay was adapted accordingly.

  9. 3.1. Free Movement of Persons 8 The CoJEU has ruled, that the Free Movement rules are applicable on all economic activities, even on those of non-profit organisations like those of churches, social institutions, cultural societies, sport associations.etc. Especially the last type (sport) has led to highly remarkable involvement of the EU laws with phenomenons like the transfer system (Bosman case), doping rules, training compensation (Bernard case), etc. The CoJEU only allows minor “nationalistic” rules as regards the composition of national teams etc.

  10. 3.1. Free Movement of Persons 9 Civil servants are not covered by the Free Movement of workers (Art. 45(4)TFEU). However, the CoJEU has ruled that this exception only regards those exercising public authority or have the responsibility for safeguarding the general interest of the State. Moreover, once the foreigner has got access to a public job, he may not be treated unequally. Criminals and some other persons cannot benefit from the Free Movement regime as this regime is subject to limitations on the grounds of public policy, public security and public health (art. 45(3) TFEU and Directive 64/221/EEC) which specifies it. Also the CoJEU has contributed to this limitation by ample case law.

  11. 3.1. Free Movement of Persons 10 Warning: Since the introduction of the idea of EU citizenship all limitations on the free movement of workers rules have become uncertain. They can be questioned on the basis of art. 18 FTEU (in combination with other provisions from primary and secondary EU law.

  12. 3.1. Free Movement of Persons 11 One example: can you go to The Netherlands to study at the University of Tilburg and immediately claim Student Income Support according to the Dutch rules? The Dutch authorities in the past rejected such claims as they in principle required Dutch nationality. If you had been a worker in The Netherlands or the child of an Italian migrant worker in the Netherland, they would have made and exception based on the Free Movement of Workers rules, but not otherwise. However, since the Bidar case, EU countries must also give Student Income Support to foreigners, who already during a certain time are legally residing in another EU country and more or less integrated there. So the answer on the question is still: you, presumably cannot claim, but there has been added a further group of persons who can claim Student Income Support.

  13. 3.1. Free Movement of Persons 12 Mobility of workers (both employees and independent workers) in Europe is hampered by the diversity of national qualification requirements. Art. 53 TFEU requires action in the sphere of free movement of services, and these EU-rules have been extended to free movement of employees. First there was a step-by-step (profession-by-profession) approach to harmonise certificates of qualifications Then there was the adoption of Directives on a general system for the recognition of diploma’s Now all that is consolidated in Directive 2005/36/EC.

  14. 3.1. Free Movement of Persons 13 Employment Services In order to promote the intra-EU exchange of workers and jobs Reg. 492/2011 - orders the national public employment services and the Commission to cooperate - has set up various coordinating bodies They have launched a network-system (EURES) fostering direct exchanges of information between the public employment services of all MS. Does it work??

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