FREE MOVEMENT OF PERSONS Satu Pitkänen

SOURCES OF LAW Primary Law: EC Treaty Secondary Law Articles 17, 18, 39, 62 Secondary Law Regulations 1612/68, 1408/71, 883/2004 Directive 2004/38/EC Case Law of the ECJ Van Duyn 41/74, Levin 53/81, Adui and Cornuaille 115, 116/81, Reed 59/85, Kempf 139/85, Brown 197/86, Lair 39/86, Groener 379/87

? Swedish Herr Johansson works for Microsoft in Stockholm. Now he wants to move to England to start working for his present employer’s London unit. Is it possible? If yes, explain how?

FREE MOVEMENT OF PERSONS EU CITIZENS NON-EU CITIZENS Entering another member state: ID or passport Staying for over 3 months: Registration with the competent authorities Schengen Aquis: Mutual immigration, visa and asylum policy ECONOMICALLY ACTIVE Workers (employees) Self-employed persons NON-ECONOMICALLY ACTIVE Students Former employees Persons of Independent means May have excessive rights as EU citizens’ family members Conditions on residence: Proof of exercise of an economic activity Proof of financial subsistence and Coverage of healthcare scheme Rights granted: Equivalent treatment of workers Access to work Terms and conditions Social and tax advantages Right to stay in the host state is extended to the worker’s family Equivalent treatment Not the full range of social rights Right to stay is extended to the spouse and dependent children © Satu Pitkänen 2016

UNION CITIZENSHIP Union citizenship stands alongside national citizenship/nationality Not a Community concept Member States can’t challenge each other’s choice about refusing or restricting citizenship Right to move and reside freely within the territory of the Member State Right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides Right to petition the European Parliament, to apply to the Ombudsman and to write to any of the institutions or bodies of the Union Entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State

WORKER Community concept: Interpretation During a certain period of time Performing services for and under the direction of another In return for remuneration Interpretation Genuine and effective, not marginal or ancillary Length of time of employment Quality and purpose of the activity The status is not lost by Temporary incapability of work Vocational training

WORKER’S FAMILY The spouse The partner with whom the worker has contracted a registered partnership on the basis of the legislation of a Member State If the legislation of the host Member State treats registered partnerships as equivalent to marriage and In accordance with the conditions laid down in the relevant legislation of the host Member state The children under the age of 21, older children if dependable Those of the spouse/partner Ascendants of the worker and of the spouse/partner if dependable

FREE MOVEMENT AND RESIDENCE (1) TEMPORARY STAY: FOR LESS THAN 3 MONTHS EU citizens Art 18 EC Freedom of movement Dir 2004/38 ID or passport Visa is not needed Non-EU citizens Art 62 EC Depending on their nationality and the Council regulation, entry visa may be needed Non-EU citizens travelling with a family member who is an EU citizen, will be granted their visa free of charge and with minimum formalities

FREE MOVEMENT AND RESIDENCE (2) EU CITIZENS RESIDING FOR LONGER THAN 3 MONTHS Registration with the competent authorities as a Worker or a self-employed person Confirmation of engagement from the employer or a proof of self-employment Student Confirmation of enrolment Person of independent means Disposal of sufficient resources and a comprehensive sickness insurance Family members who are not EU citizens, must apply for a residence card AFTER 5 YEARS OF UNINTERRUPTED RESIDENCE Union citizens and their family members will acquire a permanent right of residence The right will no longer be subject to any conditions

RIGHT TO LOOK FOR WORK EU CITIZENS AN UNEMPLOYED PERSON IS ENTITLED To stay in another EU country for a ‘reasonable period’ of time in order to look for a job Generally 6 months Use the EURES network established by the European Commission and national employment departments To continue for up to 3 months, on certain conditions, to draw any unemployment benefit he may have been receiving in his home country

RECOGNITION OF PROFESSIONAL QUALIFICATIONS EU CITIZENS RECOGNITION OF PROFESSIONAL QUALIFICATIONS MAIN PRINCIPLE: Once a person is qualified to exercise a profession in his home country, he is qualified to exercise the same profession in any other EU country TWO CATEGORIES OF PROFESSIONS, VARIATIONS BY STATE: Non-regulated professions No recognition is necessary Regulated professions 1) Coordinated professions Can be practiced in any EU country Doctor, general nurse, midwife, veterinary surgeon, pharmacist, architect 2) Other regulated professions Recognition must be applied for in the host country

DEVELOPMENT OF WORKER’S RIGHTS EU CITIZENS PERSON IN SEARCH OF EMPLOYMENT Equal treatment when applying for jobs Right to stay in the host state generally for 6 moths Right to use the services of the EURES network WORKER Right of residence for as long as remains a ’worker’ Equal conditions of employment Social and tax advantages Rights of worker’s family FORMER WORKER Continuing rights

RIGHTS OF WORKERS (1) EU CITIZENS Reg. 1612/68 The right to take up an activity as an employed person Access to available employment Exception: Employment in the public service Public service as a community concept applies only to employees safeguarding the general interests of the state Freedom of movement of workers as one of the fundamental freedoms, is subject to broad interpretation Transitional restrictions apply to the 12 new Member States by May 2011

RIGHTS OF WORKERS (2) EQUALITY OF TREATMENT WITH THE WORKERS WHO ARE NATIONALS OF THE HOST STATE Conditions of employment Health and safety Pay Dismissal and reintegration Social security and welfare benefits Worker is insured in the host state Social assistance, accommodation, family benefits etc Target is coordination of the Member States’ social security legislation So that workers’ contributions in different Member States are aggregated To avoid double benefit Tax benefits Generally ‘resident for tax purposes’ in the host state EU CITIZENS

RIGHTS OF WORKERS (3) EU CITIZENS RIGHTS TO REMAIN IN THE TERRITORY OF ANOTHER MEMBER STATE When resident for more than 3 months the worker needs to obtain a registration certificate if the host state runs a registration scheme Worker and his family members may claim permanent residence in the host state after having continuously resided there for 5 years For retirement, after A 3 year period of continuous residence in the host state and Having been working there for at least the preceding 12 months Worker’s right of residence cannot be withdrawn while temporarily incapable of work Due to involuntary unemployment or As a result of illness or accident Neither worker nor his family can’t be deported because the identity card or passport on which they entered the host state has expired EU CITIZENS

? Herr Johansson has 5 children and he worries about their education. Knowing how expensive the British private schools are he thinks he can’t afford them. Would you recommend him to forget his London dreams entirely?

RIGHTS OF WORKER’S FAMILY EU CITIZENS The rights are dependent on the status of being a family member of a migrant EU national Members of a worker’s family have a right to install themselves with the migrant worker => They become ’favoured EC citizens’ => are entitled to equality of treatment with the families of the workers who are nationals Irrespective of nationality, the family members may take up employment or self-employment in the host state The children of migrant EC workers are entitled to full national treatment as regards all forms of state education

? In his wild youth, herr Johansson used to be a youth activist, and he sometimes participated even in illegal demonstrations. Once he was fined for destroying public property and once for violence. Can these 15 years old incidents affect his immigration to England?

DEROGATIONS FROM FREE MOVEMENT OF WORKERS EU CITIZENS DEROGATIONS FROM FREE MOVEMENT OF WORKERS Directly and indirectly discriminatory national measures violate Art. 39 Exception: Justification on grounds of Public policy Varies from state to state Presupposes genuine and sufficiently serious, current threat to public policy Presupposes personal conduct Public security Must be based on the individual conduct of the person concerned Public health With epidemic potential as defined by the WHO Narrow interpretation Justification depends on if the measure is necessary and proportionate to the aim pursued

APPLICATION OF LEGISLATION EU CITIZENS Direct effect Individuals may enforce Community law rights before national courts, given that the EC Law is precise, unconditional and aims at conferring rights upon private persons against a state (vertical direct effect) and against other individuals (horizontal direct effect) All Community law has vertical direct effect Directives don’t have horizontal direct effect

? An Australian citizen, Mr. Cosgrove, would like to move over to France and start working there. Is it possible? If yes, explain how?

NON-EU CITIZENS Schengen Agreement Common policy on the temporary entry of persons Mutual immigration, visa and asylum policy Schengen visa grants access to the whole area A valid residence permit from a Schengen Member State can substitute a visa The agreement does not cover residency or work permits For a longer stay than 3 months a national long term visa or residence permit is needed Within the Schengen area, there are generally no identification checks at internal borders Safeguard clause: Member States may temporarily reintroduce checks on persons at their borders for reasons of public order or public security

History of Schengen Agreement 1985 agreement between Belgium, the Netherlands, Luxembourg, France and Germany Originally subject to intergovernmental co-operation Incorporated into the EC Law by the Treaty of Amsterdam 1999 Signatories: EU Member states except Republic of Ireland and the United Kingdom have opted out Croatia, Cyprus, Romania and Bulgaria are not yet fully-fledged members External members: Norway, Iceland, Switzerland and Liechtenstein Switzerland and Liechtenstein => Schengen Aquis

Schengen Agreement Members Signatories Expressed interest (set to implement Later) Expressed interest MORE INFO >