Web site: www.colucci.eu EUROPEAN LABOUR LAW IN MOTION Freedom of movement of persons: objectives and challenges Michele Colucci E-mail:info@colucci.eu Web site: www.colucci.eu Brussels 22 February 2010

The European Union: 493 million people – 27 Member States

23 official languages 3

Eight enlargements 1952 1973 1981 1986 1990 1995 2004 2007 4

The treaties 1952 The European Steel and Coal Community 1958 The treaties of Rome: The European Economic Community The European Atomic Energy Community (EURATOM) 2009 Treaty of Lisbon (finally entered info force!) 1987 The European Single Act: the Single Market 1993 Treaty of European Union – Maastricht 2003 Treaty of Nice 1999 Treaty of Amsterdam 5

Jobs and growth Challenges: 4Demography 4Globalisation Solutions: European strategy for: 4More research and innovation 4A more dynamic business environment 4Investing in people

The Lisbon Treaty (entered into force on 1 December 2009) The Treaty will make the European Union: More efficient Simpler processes, full-time president for the Council, etc. More democratic Stronger role for the European Parliament and national parliaments, "Citizens initiative", Charter of Fundamental Rights, etc. More transparent Clarifies who does what, greater public access to documents and meetings, etc. More united on High Representative for Foreign Policy, etc. the world stage More secure New possibilities to fight climate change and terrorism, secure energy supplies, etc.

THE SINGLE MARKET AND THE FOUR FREEDOMS 1. Freedom of movement for persons 2. Freedom of movement for services 3. Freedom of movement for capitals 4. Freedom of movement for goods

Treaty Provisions Art. 18 TFEU: Ban on discrimination on grounds of nationality Art. 20 TFEU: citizenship of the EU Art. 21(1) TFEU: Free movement and residence of EU citizens Art. 45 TFEU: Free movement of workers Art. 49 TFEU: Freedom of establishment Art. 56 TFEU: Freedom to provide services

EC TREATY AND EU CITIZENSHIP Every person holding the nationality of a Member State shall be a citizen of the Union. (art. 20 TFEU). Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. (art. 21 TFEU).

FREE MOVEMENT OF WORKERS Artt.45 - 48 TFEU Workers have the right to: accept offers of employment actually made; move freely within the territory of Member States for this purpose; to stay in a Member State for the purpose of employment; to remain in the territory of a Member State after having been employed in that State.

Self employed persons: Right of establishment(artt. 49-54 TFEU) and Freedom to provide services (artt. 56-62 TFEU): the right to take up and pursue activities as self-employed persons and to set up and manage undertakings .

Secondary Legislation The original fragmentary legislation: Regulation 1612/68 on freedom from discrimination in employment; Directive 64/221 on derogation on grounds of public policy, public security or public health Directive 68/360 on rights of workers of their families; Directive 73/148 on rights of the self-employed and their families; Directive 75/34 on the right to remain after employment has ceased

Secondary Legislation Directive 2004/38 of the EP and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

From workers to citizens Students European citizenship Third country nationals/non-EU citizens Derogations of rights of free movement

ECJ and Freedom of Movement of Persons: Who are Workers (1) Concept of worker to be defined to have a Community meaning, rather than defined by national laws of MS: case 75/63 Hoekstra v. BBDA [1964]: a person who had lost his job, not currently in employment but capable of finding another job; Case 53/81 Levin v. Staatssecretaris van Justitie [1982]: a part time worker whose income does not provide sufficient support and fell below the nationally recognized minimum wage, provided that the work is “effective and genuine” and not on such a small rate as to be purely marginal and ancillary; Case 66/85 Lawrie-Blum v. Land Baden-Württemberg [1986]:”the concept must be defined in accordance with objective criteria…[t]he essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.” Case 139/85 Kempf v. Staatssecretaris van Justitie [1986] a part time worker whose income was below the minimum in the host MS and who needed to supplement that income from benefit funds of another MS Case 196/87 Steymann v. Staatssecretaris van Justitie [1988]: a work of a member of a religions community who perform some household duties even without getting formally paid (only pocket money) has been found to be “economic activity” Case 344/87 Bettray v. Staatssecretaris van Justitie [1989]; the concept of worker does not include a person from one MS who performs work as a part of a drug-rehabilitation program in another MS

THE BOSMAN case cause C -415/93 An humble “worker” vs. a strong system Sport= economic activity= the end of transfer compensation Quid training ? The new FIFA regulations on Status and Transfer of Players

EQUAL TREATMENT BAN ON “DIRECT” DISCRIMINATIONS Art. 18 TFEU on the basis of nationality Art. 45 TFEU:… Access to employment Pay Employment conditions Association agreement, Co-operation agreement, and so on. SPORT: Balog case, Simutenkov, case

« COVERT DISCRIMINATIONS » NO « COVERT FORMS OF DISCRIMINATION” which, by the application of other criteria of differentiation, lead in fact to the same result . (cause 152/73 Sotgiu) YES, only in case of « objective reasons »; proportionality test!

THE UEFA HOMEGROWN PLAYER RULE Homegrown: player trained by a club for 3 years when he is between 15 and 21 years old 2008/2009 8 up to 25 No discrimination on the basis of nationality.

Discriminatory act and limit to free movement ordinary legislation, Collective bargaining agreements, Regulations of private associations,(Bosman, C-415/93): FIFA, UEFA, Limits to free movement: Public administration; Public order and security Public health

ECJ and Freedom of Movement of Workers: Scope “social advantages” attached to employment (social and tax advantages) Limitation to access to market (extent of indirect and direct discrimination, justification of restrictive measures as appropriate, non-discriminatory, proportionate, justifying mandatory requirements in the general interest).

Reverse discrimination “National law” v. “EU law”: Different scope different goals EU Law does not apply to purely internal matters.

Derogations From Free Movement It is for MS to determine concepts of public policy but limitations on free movement of persons has to be based on personal conduct and a present threat and have to be proportionate (public policy, security and public moral respectivelly in cases 41/74 Van Duyn; case 67/74 Bonsignore; joint cases 115 and 116/81 Andoui and Cornuaille)

ECJ and Art. 45(4) TFEU Public Service Exception ECJ offered narrow interpretation of “public service” work and determined that the application of exception would depend on the nature of the duties and responsibilities involved at that work, not on the concept of public service (case 149/79 Commission v. Belgium)

Directive 2004/38 Scope Applies directly only to EU citizens who move to or reside in another MS and their family members The rights of the EU citizen’s family members apply irrespective of their nationality as long as the claim of primary entry and residence right is made by the EU citizen; Freedom from discrimination on the basis of Art. 18 TFEU transposed so that all EU citizens and their families exercising residency rights under the directive

Directive 2004/38 The rights of the EU citizen’s family members apply irrespective of their nationality as long as the claim of primary entry and residence right is made by the EU citizen; “Permanent residence” granted to all EU citizens and their family members (regardless of their nationality and economic status) who have resided legally in a host MS for at least 5 years (Art. 16 Directive) Safeguards in relation to MS right to expel individuals on grounds of public policy or public security Freedom from discrimination on the basis of Art. 18 TFEU transposed so that all EU citizens and their families exercising residency rights under the Directive are entitled to equal treatment with the nationals of the host MS (Art. 24 Directive) New administrative procedures and requirements related to reporting requirements and residence cards

ECJ and EU Citizenship Application of non-discrimination principle to EU citizens: Case C-85/96 [1998] Sala v. Freistaat Bayers: ECJ, An EU citizen lawfully resident in a MS of which she/he is not a national can rely on the non-discriminatory provision of Art. 18 TFEU in all matters falling within the scope of application of the Treaty Case C-184/99 [2001] Grzelczyk v. Centre Public: ECJ, EU citizens-students, lawfully residing in another MS, not to be discriminated against on the basis of their nationality when considered for welfare benefits

SOCIAL SECURITY Regulation 1408/71 Regulation 883/2004 (the Basic Regulation) ('BR') The New Implementing Regulation 987/2009 ('IR') Both Regulations of equal value Cannot apply one without the other

Basic Principles of Social Security Coordination Article 42 EC: aim to ensure citizens do not lose social security rights when they move Equality of treatment regardless of nationality Legislation of only one Member State applies at any one time Periods of insurance acquired in different Member States can be aggregated Benefits can be exported But also Health insurance

MUST Update Simplify Clarify Improve protection of citizens’ rights Strength and Streamline institutional procedures Enhance Cooperation "Clear and more effective cooperation between social security institutions is a key factor in allowing the persons covered by regulation (EC) 883/2004 to access their rights as quickly as possible and under optimum conditions" [Preamble of the NIR, second paragraph ]

Some remedies Train the Personnel Make sure thaty they know languages and procedures Provide more and better information to Citizens Public and private institutions

FOR A REAL FREEDOM TO CIRCULATE What can I (EU citizen) do? Preliminary question to the Court of justice Written question via an MEP Petition to the EP Complaint to the European Commission