Free movement of Workers in another fundamental principle of Eu la. It is governed in Article 45 TFEU which reads ‘Freedom of movement of Workers shall be secured within the Union’.
What Is a worker?
Before even looking at the restriction, it is important to identify what a worker actually is, as this will determine if these set of rights will actually apply to them.
The case of Laurie Blum identified that a worker is someone who provides services for another, working under another and received remuneration in return for their work. Case law has developed these principles:
In Steyman it was found that remuneration does not have to be in money. It can be in return for accommodation and food.
In Kempf it was found that the remuneration when in money, does not have to be enough to live on. The case of Levin leads on from this and stated that part time work was enough to be classed as a worker. No requirement to work full time.
The case of Betray found that the work must be for a purpose. This means that it must actually be to get remunerated. In this case, a man was going through rehabilitation and was performing activities to help the community. However, because this was only for his benefit and not for the purpose of being a worker, he was not classed as a worker.
One point to note is that this does not include self-employed work. This would come under the freedoms of Services and Establishment depending on whether it was on a temporary or permanent basis.
The recast directive (2004/38)
The recast directive as it is known, gave workers’ rights under this act codifying the law in this area. The following articles are relevant here:
- Article 5- the right to enter
- Article 6- the right to reside for 3 months
- Article 7 the right to reside for longer if they are a worker
- If they stay for 5 years as a worker, they will be entitled to a permanent residence in that country. This will absolutely give that citizen the right to enter reside and be treated as a national citizen.
All of these rights enable that citizen to benefit from that state as if they are a national in that state, as well as their family. This will be covered in due course.
Therefore, after looking at those rights form the recast directive, we can see that any attempt by a member state to restrict any of these rights can be seen as a restriction.
Distinctly applicable restrictions
There are restrictions that are directly discriminate on foreign nationals. They are restricted because they are not from that country. There can only be justified under treaty article justifications.
Indistinctly applicable restrictions
There are restrictions that are indirectly discriminate. They put foreign nationals at a disadvantage while strictly applying the law to all nationals. For example, only workers who are fluent speaking English are allowed to enter the UK. This applies to everyone, but people brought up in the UK will most likely speak English.
Justifiable under the Treaty
Treaty justifications for restricting the free movement of workers are held under Article 45(3) TFEU. These are the normal ones that apply to all free movements that we have seen before in regards to goods, services and establishment. They are Public Health, Public Policy and Public Security.
The case of Van Duyn can be seen as an example of Public Policy. In this case, the Uk was trying to restrict a scientologist from entering the UK. This was in the 1960’s and would not be restricted now. They did restrict her on the basis that scientology was of a genuine and sufficient threat to the culture of the UK. The Recast Directive developed the law in this area and said the threat must be immediate and direct.
The case of Bouchereau developed the law in regard to public security. This case said how long ago previous offences were must be looked at, and the seriousness of the crimes that they committed. They must the make a proportionate and informed decision as to them remaining in the country.
Public health has very high standards. They are only allowed to restrict if that worker has a contagious or epidemic disease such a Plague. HIV and AIDS have been debated and were found not to be an epidemic or contagious.
The case of Campus Oil identified the saving of public tax payer money, does not class as public policy, and therefore cannot be restricted
The case of Adoui regarded prostitutes from one-member state moving to another. It was illegal in the member state they were moving into but not in the one they were from. It was held the member state was not allowed restrict if they were not breaking the law in their own member state.
Justifications under Bosman
The case of Bosman developed the law in free movement of workers adoping a cassis-style approach. Bosman was a footballer who’s contracts involved a transfer fee which was extremely high to foreign football clubs. Bosman challenged this on the basis that it was hindering and making less attractive using his free movement rights to transfer to a football club within the EU.
The principle that was developed from that case is that the state will be allowed to restrict if they satisfy a legitimate aim, justified by a pressing reason of the public interest. Bosman won his claim based on this and the high transfer fees were abolished.
The case of UK v commission which regarded midwives brought this principle into the UK.
If the worker is seeking a job in the public service, the member state will have more grounds to restrict the worker as the treaty Article 45 does not apply to work within the public service. It must be a mandatory requirement of the state and it must still be proportionate in regard to public service work.
Once again, any restriction that is attempted by the EU must be proportionate. If it is not proportionate, the restriction will not be justifiable. By proportionate, it means they must lease the least restrictive way to meet their objective. For example, in the Bosman case, it was not proportionate to change excessive transfer fees just because a club was in a different country. The way of making it more proportionate was not to have an excessive transfer fee, because it is unnecessary and had no reason or objective behind it other than to restrict movement.
Families of workers
Families of the workers that move are also able to move with the worker that is being allowed into the member state. They have parasitic rights which are only engaged because the worker is an EU citizen engaging their rights. This means that they will be able to benefit from this even the workers family is not an EU citizen.
Article 1 of the Recast directive gives the Free Movement for the worker and their family. This is also stated directly in the TFEU article 45 itself.
Family is a wide term and it must be narrowed as it could be argued that very wide spread relations were part of your family and can benefit from the same rights. This is not the case. Article 2(2) of the recast directive defines family member as a spouse, partner, direct decedents (children) under 21 or who are dependent, and direct relatives in the ascending line the partner or spouse.
These rights apply to both the workers family as well as the spouse/ partners family.
Article 3(2)(A) and 3(2)(B) allows the Member state to restrict further relatives defined in the article if they can give a justified reason which is proportionate for their denial of entry.
There categories are:
- Other family members irrespective of nationality
- Other dependents
- Durable relationships (more than 2 years)
- Taking into account national legislation and must look at the personal situation of the claimant.
Article 1 of the recast directive allows anyone who is coming into the country to be restricted on the basis of public security, public policy and Public health. The same case authority will apply in these situations as they demonstrate the same point.
Breakdown of Marriage/relationship
As previously stated, the rights of a worker’s partner are only parasitic and therefore if their marriage breaks down it can cause some problems.
If that worker moves, and the partner is a non-EU citizen, they will have to move with their partner. This is subject to national law provisions which may allow them to stay depending on the length of time they have stayed. Case authority for this is Ex p Sandhu
If the partner is staying in the same member state, as long as they are still marrying, their partner is able to stay in the same member state. The case of Ditta said that there was no requirement for a husband and wife to live in the same home.
It must also be noted that all of these rights are only available to returning migrant workers. If a national has not gone to another member state, they have not engaged their EU workers’ rights and may not be able (subject to national law) keep their spouse in their country. In order for the worker and the partner, family member or any other person who may be allowed in on the back of the worker, the worker must have exercised their EU rights and be a returning migrant worker.
By Woodrow Cox