European Law (2016/2017) Lecture 2
Lecture 2 of the Course European Law (2016/2017), Utrecht University
Lecture 2: Free movement of workers & EU citizens
Dr. I. van der Helm (European Law)
This week
This lecture we start with the free movement of workers and EU citizens. Last week two other freedoms were addressed, the freedom of establishment (art. 49 TFEU) and the freedom to provide or receive services (art. 56/57 TFEU). All those rights form concerns by economic activities in another Member State.
If an EU citizen moves to another country, then there is freedom of workers. He will work for a company in another Member State. There’s also the general right of freedom of persons (art. 21 TFEU) to move and to stay in another Member State. This right is for each of us, also when there’s no economic activity. But for how long and under which circumstances?
Free movement of workers/EU citizens
The internal market is the key objective of the European Union (art. 3(3) TEU & art. 26 TFEU). The free movement of goods, persons, services and capital is ensured. Restrictions on the access of the internal market have to be removed. The free movement of persons is divides into:
1. Of workers holding nationality EU country (art. 45 TFEU) and;
2. Other EU-citizens (art. 21 TFEU). For example: students, tourists, retired.
The workers
Art. 45 TFEU is the provision to determine what it means to be a worker. In addition, there is a regulation 492/2011, which contains an elaboration of the main rules and it contains also other detailed rules.
According to the ECJ in the case Lawrie Blum, a definition is given of ‘who is a worker’. It is important not to look at definition of a worker in the national law. There might be a difference in all those Member States, so that could lead to limiting of the right of free movement. The EU rules are important, there are EU criteria and they should be interpreted broadly. The criteria are very important for the employment relationships.
Lawrie Blum case: ‘’During a certain time someone provides services for another under his authority and receives remuneration for this’’. The nature of the legal relationship is not relevant. There must be work against remuneration in subordination.
The case Bosman is about sports activities: an economic activity in EU law, and is a football player a worker? Read the case! Trainee teachers gave lessons for a few hours per week. According to the ECJ, also part-time workers should be considered as workers in the light of art. 45 TFEU. When the exercise of sports has the nature of employment, it falls within the scope of article 45 TFEU.
There is also a prohibition of discrimination based on nationality between workers of the Member State (art. 45 TFEU). The rights of article 45 (3) TFEU are regulated in the Directive 492/2011. The regulation has direct effect and can be invoked by workers.
Seeking work
Free movement of workers is also seeking work, so persons who are looking for a job (Case Antonissen, Case Collins). The ECJ has rules in case law that the right of the freedom of workers that the person who has no work yet is entitled to seek work in another Member State. This concerns equal access to the internal market, but not the right for social benefits/advantages. The work must be found within a reasonable time (Case Antonissen). When you have not found work within 6 months, you could be expelled. This was found reasonable by the Court.
Applicability and direct effect
Article 45 TFEU is not applicable in internal situations (no cross-border element/aspect) or employment in public service (art. 45 (4) TFEU). The Court interprets this restriction very narrowly. An exception is safeguarding the general interest of the state, like, for example: people who are working in the army, the judiciary.
In all the other cases, the freedom of workers has direct effect (Bosman case). The right can be invokes vertically and horizontally. A worker can invoke the right vertically against the host Member State, or horizontally against his employer.
Forbidden
- Direct discrimination on basis of nationality (art. 45(2) TFEU), there are exceptions said in art. 45(3) TFEU. For example, the Bosman case.
- Indirect discrimination on basis of nationality (art. 45(2) TFEU), unless: the exceptions in art. 45(3) TFEU occur, or the indirect discrimination pursues a legitimate aim which is justified by overriding reasons of public interest, is appropriate to achieve the legitimate objective pursued appropriateness and; does not go beyond what is necessary to achieve the desired objective (proportionality). All of these conditions should be met.
- Obstacles to free movement, unless justified legitimate aim for pressing reasons of public interest and proportional (rule of reason) (ECJ Bosman).
The rights of the workers
In the Regulation 492/2011 the rights are regulated for the workers. One of time is the right of same social and tax advantages (art. 7(2) Regulation). You can think of social benefits for family and children. Also the members of the family can have these advantages. Look at the Meeusen case. The question was whether the child of the worker was entitled to study in the Netherlands, while she lived in Belgium.
The free movement of workers also applies on frontier workers (workers who work in another Member State, but choose to stay in the Member State of origin: they should have the same advantages).
Freedom of movement of all EU citizens
The EU citizen and its rights are defined in art. 21 TFEU. All EU citizens have this right to move and reside freely in the EU (Art. 21 TFEU and Directive 2004/38, whether pursuing an economic activity or not. There is also a prohibition of discrimination on the basis of nationality (art. 18 TFEU). This article and article 21 TFEU give protection to the EU citizens, see case Förster.
The right to move and reside in the EU is regulated in the Directive 2004/38, also on what conditions you can stay and what rights you can claim. The right of residence is up to three months (art. 6, 14). Than the right of residence for longer than 3 months (art. 7) and the permanent right of residence (art. 16). The restrictions are regulated in art. 27 and equal treatment in art. 24.
Requirements:
- Valid ID or passport (art. 6)
- No unreasonable burden for the Host states, you will not claim any benefits (art. 14)
When a person wants a longer residence than three months, the person will have to fulfil the extra requirements of articles 7 and 16. Also the restrictions of article 27 are important.
Equal treatment for all persons is also important. Workers have to be always treated equally. But what about the other persons? This is regulated in article 24 of the Directive.
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European Law Lectures 2016/2017
European Law (2016/2017) Lecture 1
European Law (2016/2017) Lecture 1
Lecture 1 of the Course European Law, Utrecht University (2016/2017)
European Law: Lecture 1, 14-11-2016,
The freedom of establishment & free movement of services
Sybe A. de Vries
The course will include the social dimension of the internal market. We are going to focus on the freedom of establishment & free movement of services. It all started with the freedom of goods.
Set-up for the lecture: What is actually happening in Europe? This is the context of this course. We’re going back to the basics for free movement, what are the basis principles, and we will be zooming in at establishment and services.
Context
Just after the second World War (1956), Churchill pleaded for a united Europe. We know now that the situation is really different, with the Brexit, but also with other Party leaders, pleading in favour of leaving the European Union. Why do we have the EU in the first place and why do we have an internal market? What was the aim of the common market and political cooperation? The main aim was that a Third World War should be prevented. Creating peace was and has always been the core of the European project. This is very important still, now that a lot is changing, for example now that Trump is going to be president of the United States of America.
What is going to happen after the Brexit, for the internal market? Europe is currently in a crisis. What is the effect of Brexit? Video:
- The free movement of goods: 50% of the trading goods is with the EU, so there will be costs of loss in investment, development and innovation. The UK will have to comply with all the regulation that the EU has laid down. The UK would have to negotiate each deal independently. Other countries will be dealing with a small country, instead of a big supranational organisation.
- The free movement of persons: 600.000 persons immigrated to the UK. The majority of those people came from outside the EU. Those migrants who will be working in the UK, what will happen to them? Secondly, what about Britains wanting to work in other EU countries, of people who want to go on holiday? Right now they have the right to move, to receive medical healthcare or use roaming in other EU countries. This will all disappear. There will be costs for a number of people. The UK will be able to control the borders; the EU immigrations will pay taxes. Immigration is based by economic growth, there will be a demand for labor.
- Free movement of services: Many large companies are based in the UK and provide services to other States, like .....read more
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European Law (2016/2017) Lecture 2
European Law (2016/2017) Lecture 2
Lecture 2 of the Course European Law (2016/2017), Utrecht University
Lecture 2: Free movement of workers & EU citizens
Dr. I. van der Helm (European Law)
This week
This lecture we start with the free movement of workers and EU citizens. Last week two other freedoms were addressed, the freedom of establishment (art. 49 TFEU) and the freedom to provide or receive services (art. 56/57 TFEU). All those rights form concerns by economic activities in another Member State.
If an EU citizen moves to another country, then there is freedom of workers. He will work for a company in another Member State. There’s also the general right of freedom of persons (art. 21 TFEU) to move and to stay in another Member State. This right is for each of us, also when there’s no economic activity. But for how long and under which circumstances?
Free movement of workers/EU citizens
The internal market is the key objective of the European Union (art. 3(3) TEU & art. 26 TFEU). The free movement of goods, persons, services and capital is ensured. Restrictions on the access of the internal market have to be removed. The free movement of persons is divides into:
1. Of workers holding nationality EU country (art. 45 TFEU) and;
2. Other EU-citizens (art. 21 TFEU). For example: students, tourists, retired.
The workers
Art. 45 TFEU is the provision to determine what it means to be a worker. In addition, there is a regulation 492/2011, which contains an elaboration of the main rules and it contains also other detailed rules.
According to the ECJ in the case Lawrie Blum, a definition is given of ‘who is a worker’. It is important not to look at definition of a worker in the national law. There might be a difference in all those Member States, so that could lead to limiting of the right of free movement. The EU rules are important, there are EU criteria and they should be interpreted broadly. The criteria are very important for the employment relationships.
Lawrie Blum case: ‘’During a certain time someone provides services for another under his authority and receives remuneration for this’’. The nature of the legal relationship is not relevant. There must be work against remuneration in subordination.
The case Bosman is about sports activities: an economic activity in EU law, and is a football player a worker? Read the case! Trainee teachers gave lessons for a few hours per week. According to the ECJ, also part-time workers should be considered as workers in the light of art......read more
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European Law (2016/2017) Lecture 3
European Law (2016/2017) Lecture 3
Lecture 3 of the Course European Law (2016/2017), Utrecht University.
Lecture 3, The Area of Freedom, Security and Justice
We have to try to understand the reasons for why we have an area of freedom, security and justice. How does that function? That is legislation. And then the look at the powers that have been given from the Member States, to the EU. The European Union is what the Member States decided to give to the EU.
Why do we have the AFSJ?
Before the EU, there was an European community. When you wanted to cross the border, you had some time to spend hours in the traffic jam. Some Member States decided that it would be good to abolish the frontiers between the Member States. In 1985 (Schengen-agreement) principles were laid down between Luxembourg, Belgium, the Netherlands, France and Germany. In 1990 there was the Convention on the Implementation of the Schengen agreement.
There were things needed to open the borders. There was a need for compensatory measures to address:
- Asylum and immigration (not all people are welcome in the Member State)
- Border controls
- Criminal activities (criminals can move easily when there are no borders)
- Civil matters (marriage with a foreign person)
If you open the borders, then you will have all kind of problems to address. It would be nice to use that we had by this time, the institutions to implement these rules.
There was a formal intergovernmental cooperation in Justice and Home Affairs (JHA), with specific legal instruments, unanimity, and a limited role of EC institutions. This was followed by the Treaty of Amsterdam and Treaty of Lisbon.
The Justice and Home Affairs cooperation became more supranational after the Treaty of Lisbon, and became Area of Freedom, Security and Justice (Part III, Title V TFEU). Rules before the Treaty of Lisbon have no direct effect (Protocol N. 36, Article 9).
The AFSJ is an objective of the EU.
The Treaty defines the AFSJ as one of the objectives of the EU. This is also dressed in article 3(2)TEU: ‘’The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’’......read more
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European Law (2016/2017) Lecture 4
European Law (2016/2017) Lecture 4
The 4th Lecture of the course European Law (2016/2017) Utrecht University
Lecture 4, European Law
Sybe De Vries: Harmonisation
This week we will discuss the subject of Harmonisation within the European Union. Firstly, we will discuss the concept of the harmonisation, the interaction of institutional and substantive development. Thirdly, we will discuss the legal basis of harmonisation measures, the consequences of harmonisation, techniques and finally the difference between harmonisation and primary European Law.
The concept of Harmonisation
The Article which is very important while discussing the subject of harmonisation, is Article 3(1) sub H EC. The article describes the harmonisation as follows: ‘’Approximation of the laws of the Member States’’. In addition, it is about harmonisation on the common market. The regulation of the market was taken over by the European Union, there is a shared market between the Member States and it is regulated by the European Union, because the Member States handed in their sovereignty.
The most important instrument to do harmonisation, is in the form of a Directive (article 288 TFEU). Harmonisation is possible through Directives.
There are also forms of harmonisation outside the framework of the Internal Market and shared market. This is the Area of Freedom, Security and Justice. This is discussed in the third lecture of this Course. If you have any trouble with the subject, review that lecture. The AFSJ is an economic integration and abolishment of internal borders. It protects asylum, immigration, cooperation in the field and civil and criminal affairs, such as police cooperation.
At this subject harmonisation is also possible.
Harmonisation is needed, because the European Union is trying to form unity. If in the multiple Member States there’s different regulations about everything, this will have consequences for the Member States. If someone commits a crime in Germany, but it’s not illegal in his Country of origin, this could lead to problems. It is necessary that the rules are the same in both countries. There would be one Union with more Member States, but with the same regulation. This will be good for the common market. That is why there is harmonisation. Until 1986 there had to be unanimity between the Member States to form regulations, this is no longer the case. Lots of development eventually lead to the Treaty of Maastricht in 1992, and the Treaty of Lisbon in 2009.
The principles of Harmonisation
At the harmonisation process of article 288 TFEU, a few principles should be considered important. Firstly, there is the principle of conferred powers.....read more
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European Law (2016/2017) Lecture 5
European Law (2016/2017) Lecture 5
Lecture 5, European Law (2016/2017), Utrecht University
European Law, Lecture 5
19 december 2016, Posting of workers
Today we will discuss the posting of workers. This is when an employer sends an employee to another Member State to provide services or to start working there. The last weeks of the course we will discuss the social benefits of the European law, like for example European labour law.
Article 45 TFEU
The rights that were discussed in the earlier weeks of the course: The free movement of workers (art. 45 TFEU) to work in another Member State, to reside in another Member State under certain conditions (there must be an economic activity, in subordination and for remuneration, en not in the public service). Employees should be protected by this article of the Treaty; there may be no discrimination based on nationality (Article 7(2) Regulation).
Posting of workers
Posting of workers is the activity from an enterprise of sending employees to work in another Member State, to work for another enterprise (posting). For example, Hans is working in the Netherlands for a container-company, he gets send to Germany to work there for another container-company (providing services). The employee Hans is sent to another Member State, to provide services for another company.
The social protection is different from the rights of article 45 TFEU. This leads to the question: might this have negative consequences for the Member States (whether there would be a conflict between different social models in Member States) and lead to social dumping and unemployment for the nationals in that Member State?
Case law on the posting of workers
The Rush Portugesa case (C-113/89): The question arose about the protection that was given and if it was allowed to give the employees lower wages. A Portugese company brought Portugese workers to work in France before the free movement of workers was allowed. The French authorities imposed a big fine because the company did not have work permits, they did not comply with the Regulations. The Case was brought before the Court and the Court rules: These workers were brought on the basis of free movement of services. They are not workers in the sense of article 45 TFEU. Also the criteria and rules.....read more
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European Law (2016/2017) Lecture 6
European Law (2016/2017) Lecture 6
Lecture 6 of the course European Law (2016/2017), Utrecht University
Equal treatment in Employment law
- European Law, 9 januari 2017
- Outline of the lecture
- Legislation & jurisprudence on equal treatment
- The early Directives on non-discrimination on ground of sex
- Directive 2006/54
- Difference between direct and indirect discrimination
- Harassment
- Reversal burden of proof
- A general Treaty provision prohibiting discrimination
European Law, 9 januari 2017
Equal treatment in employment
Ivo van der Helm
Outline of the lecture
Today we will be dealing with equal treatment, there is a lot of jurisprudence of the Court about this subject, and legislation, directives etc. First of all, we will discuss the evolution in the cost of time of EC-EU equal treatment law, the development of the equal treatment law. Secondly, the terms direct discrimination, harassment, indirect discrimination and positive action are important. Thirdly, we will discuss equal treatment on ground of sex and on other grounds: race, religion, belief, disability and sexual orientation. These are all forms of equal treatment.
We are not talking about equal treatment based on nationality. The Directives does not include the discrimination based on nationality. Why is that? Because there is no cross-border element in the equal treatment in employment. The Directives are intended to harmonise in certain extend. This is a social objective to avoid discrimination, the Directives are only for internal situations, there is no cross-border element. The Directive has to be implemented in national law by the Member States. So therefore there’s a difference between the discrimination prohibition for the free movement, and on the other hand the prohibition of discrimination that has to be implemented (Directives). It is important to bear in mind which discrimination grounds are involved and which Directive you should use.
Legislation & jurisprudence on equal treatment
Equal treatment of men and women is a very old Treaty provision of the EC-Treaty (1957). Also, there is the equal pay for equal work for men and women (article 119 EEC). This is now article 157 TFEU. There may be no unfair competition between Member States, this must be prevented. This is the main reason for the legislature of this non-discrimination rule.
In the Jurisprudence of the Court, the Defrenne II Judgment , The Court States that this rule has also an economic objective, but the social objective is actually more important than the economic objective. It’s about fundamental human rights, equal treatment is a community principle. Consequently, article 157 TFEU has direct effect and direct horizontal effect. This was determined in this case. The Court decides whether the article applies. It does not.....read more
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European Law (2016/2017) Lecture 7
European Law (2016/2017) Lecture 7
Utrecht University, Lecture 7 of the Course European Law (2016/2017).
European Law, lecture 7
Transfer of enterprise & collective redundancies (16 January 2017)
The last topic of the course is the transfer of enterprise and collective redundancies. There are Directives on this subject. Because open markets can also lead to negative effects for employees, there is a restructuring needed of enterprises and transfer of enterprises to other countries. Europe needed a ‘social face’, given by Social Action Programme of the European Commission in 1974.
Most of the lecture will deal with the transfer of undertaking.
Transfer of undertaking
The transfer of undertaking is a Directive, adopted in 1977 and changed in 1998, and later changed in 2001 (Directive 2001/23). The Directive sets some social conditions. It’s about the protection of the rights of employees in case of transfer of undertakings. But what protection is given? There are three main rules which need to be protected. The workers’ rights need to be safeguarded. Firstly, the contract of employment which the employee had with the transferor on the date of the transfer shall, by reason of such transfer, be automatically and completely transferred to the transferee (article 3(1) Directive 2001/23). Secondly, the transfer of an enterprise is no reason for dismissal of the employee. Finally, workers representatives must be unformed and consulted about the transfer of the enterprise.
The Directive needs to be implemented in national law. It is not only applicable in cross border situations, but also in any case as defined by the Directive.
In the Netherlands it is implemented in the Civil Code, in the Title about Labour law.
Main rules:
- There has to be a change of employership (Company A is transferring with Company B) There is a change in the legal person which is responsible, the contracts will be changed to the taking over by the new employer.
- Employees may not be dismissed just because there is a change of employership.
- There is a right to consultation and information
Maintenance of rights
Member States can provide that, after the date of the transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before.....read more
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