Print Email Download

Paid Writing Services

More Free Content

Get Your Own Essay

Order Now

Instant Price

Search for an Essay


EU law: Free movement of workers and goods

Please Read This Carefully First!!!

The intended purpose of Our research papers is that they are used as models to assist in the preparation of Your own research papers. We neither endorse nor tolerate any form of plagiarism, whole or partial, and will not engage in any activity that facilitates cheating. Papers For You or its affiliates will NEVER sell a model paper to ANY student giving us ANY reason to believe that (s)he will submit our work, either in whole or part, for academic credit at any institution under their own name!!! PLAGIARISM IS A CRIME!!!!

By purchasing research papers from Us you undertake not to pass off or submit (for any purpose whatsoever) all or any constituent part of the Paper commissioned by You, from Papers For You, as your own work or that of a third-party. In addition, You undertake not to carry out any unwriterised distribution, display, or resale of the Paper and will deal with the Paper in all respects in a manner which is consistent with any copyright, database right and other similar rights or obligations (i.e. 'Intellectual Property Rights') of Papers For You. In the event that We, in our sole discretion, believe that a Paper is being used in breach of our Intellectual Property Rights or of any or all of your undertakings in this Agreement, We fully reserve the right to refuse to carry out any further research or to accept any further Orders from You or on your behalf. You accept and acknowledge that We provide all Services subject to availability and that the Services and the Papers are provided strictly as academic support; they do not constitute advice of any kind. You also acknowledge that endorsements, recommendations and other expressions of opinion made or detailed on the Site are not endorsed by Papers For You and may not accurately reflect the policies and regulations of Papers For You. You acknowledge that any decision to use the Papers For You research service is your own and You accept that Papers For You will in no way be liable for your decision to use it's Services should this prove to be in contravention or breach of any rules, regulations and guidelines imposed by your academic institution. Papers For You reserves the right to research, write, and globally-publish example papers on the Internet, these rights are protected and shall continue unabated and uncensored.

If you quote from our paper you must reference the paper in the "References" or "Bibliography" section of your assignment, coursework or dissertation (according to the Harvard System of Referencing): Papers For You (year of the paper) "Number of the paper and title of the paper", Available from http://www.papers4you.com [Accessed date]

Part A

EU Migrant workers rights under the free movement provisions are now so extensive that they enjoy an enhanced status, even when compared to national workers who do not move.

One of the four fundamental freedoms of EU Law is the free movement of persons. The most securely protected group of persons under Community law is employed persons, or workers. Under Article 39(1) EC 'Freedom of movement of workers shall be secured within the Community.' Under Article 39(2) this must ensure, 'the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.' Limitations on this right must be justified under Article 39(3) on grounds of 'public policy, public security or public health.' In the cases of Walrave and Koch[1] and Bosman[2] the European Court of Justice (ECJ) held that Article 39 was of horizontal as well as vertical direct effect where the employer had powers to regulate conditions. Angonese[3] went further, granting the provision direct effect against all employers.

In the case of Masgio v Bundesknappshaft[4] and Bosman[5] the ECJ found a right of workers to leave their home State to work in other Member States. These rights were codified in a number of Directives that were replaced with Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.[6] Under the case of Watson and Belmann[7] the right to move to another Member State as a migrant worker is not dependent on secondary legislation and cannot be made subject to the requirements of obtaining a workers permit as it is derived directly from the Treaty. Employment rights similarly derive from the Treaty as the case of Innovative Technology[8] states but Regulation 1612/68[9] provides specific provisions in that regard.

The goal of Regulation 1612/68 when it was passed back in 1968 was to allow workers to move freely with their families and integrate quickly in the new State. The Regulation has two Titles, with Title I dealing with a right to access a job in a non-discriminatory manner, while Title II deals with the right to perform the job in a non-discriminatory manner. Under Article 1 all Member State nationals have, 'the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State, enjoying the same priority as a national.' Under Article 2, the worker can conclude contracts of employment. Article 3(1) special requirements for workers from other Member States, such as special recruiting procedures, restricted advertising, or imposing additional requirements are prohibited.

The prohibition against discrimination applies equally to direct and indirect forms of discrimination. Direct discrimination was at issue in Commission v Italy[10] in which private security work was being offered only to Italian security firms employing Italian nationals. Other directly discriminating provisions are targeted by Article 4(1) of the Directive, which prohibits the placing of numerical or percentage limits on workers from other Member States by employers. In Commission v France[11] a rule requiring three out of every four crew members on French merchant ships to be French was held to contravene Article 4(1).

Indirect discrimination is also prohibited unless, as was shown in the case of Kalliope Schoning,[12] they can be objectively justified. Article 3(1) targets practices which, 'though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from employment offered.' Examples include residence requirements or periods of service within the state. In Collins[13] for example, a UK rule prohibiting a foreign national from claiming jobseeker's allowance was held to be prima facie discriminatory and had to be proportionate and justified, a decision left to the national court.

Other more complicated measures, which will often not be intended as discriminatory, are also caught by the legislation. For example, in Kobler,[14] an Austrian practice of rewarding university professors who had served fifteen years but did not recognize service in other EU universities was held to be indirectly discriminatory and, 'likely to impede freedom of movement for workers because, first, the regime operated to the detriment of migrant workers who were nationals of other Member States and, secondly, it deterred freedom of movement for workers established in Austria by discouraging them from leaving the country to work in other Member States.'

Under Article

7(2) of Regulation 1612/68 migrant workers are entitled to all the same social and tax benefits as national workers. Often, tax rules that treat residents and non-residents differently will be targeted by this provision. While cases such as Biehl[15] show that residence requirements can be discriminatory, it often the case that residents and non-residents have objectively different circumstances and therefore, it will be reasonable and also lawful to treat them differently. Residence is generally regarded as the basis for both paying tax and collecting tax allowances and other benefits so in many cases, it will be justifiable to treat residents and non-residents differently when it comes to tax and benefits. However, in all cases, policy makers will have to ensure that there is a sound basis for doing so. This is because if the situation for the resident and non-resident is not objectively different, then there will be no justification for any difference in treatment. In the Schumacker[16] case the worker lived in Belgium with his family but performed all of his work and received all of his income in Germany. While German income tax and benefits were calculated differently than if he had been a resident, it was held that because he was in objectively the same situation as a person resident in Germany, it was not permissible to treat him differently in that situation.

Under Article 7(2) all social advantages must be provided equally and on a non-discriminatory basis. In the case of Even[17] social advantages were defined as all benefits, 'which... are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community.' Social advantages includes benefits that are granted as of right and on a discretionary basis to workers or residents, as well as those granted after the work has been terminated. Not only benefits that facilitate mobility are included but also benefits that can facilitate the integration of migrant workers into the community of the new Member State.[18] The Even judgment applies not only to benefits that are ordinarily reserved for workers, but to all advantages offered to residents on the national territory. This means that migrant workers as well as their families will enjoy all the chances in life and social benefits that nationals enjoy. As the ECJ stated in ONEM,[19] this was required under Article 7(2) as that provision requires not only that workers are able to find work but also that they and their families are encouraged to do so and that 'the best possible conditions for the integration of the Community worker's family in the society of the host Member State' is ensured to every migrant worker. This trend is also contained in Article 24(1) of Directive 2004/38 which states that the social benefits secured for workers 'shall be extended to family members who are non-nationals of a Member State and who have the right of residence or permanent residence.' Equal treatment with respect to vocational training and university access is also guaranteed as cases such as Bernini,[20] and Commission v Austria[21] demonstrate.

The issue that must be addressed in light of all these legally protected rights under EU law is whether migrant workers enjoy so much protection that they are even better off than national workers who remain in their home state? It is submitted here that this is not the case. This is because all of the rights guaranteed to migrant workers are framed in the language of equal treatment. Migrant workers are entitled to nothing but equal treatment under EU law. There are no absolute rights that they enjoy in relation to employment, social advantages or vocational training. Migrant workers are only entitled to be treated in the same manner as nationals, and their families are only entitled to be treated in the same manner as other residents of the host state.

Where migrant workers might be described as better off, is when compared to other workers in their state of origin. If the state that the worker arrives in has better labour standards and standards of living than the Member State the worker left, then the worker will be entitled to enjoy a higher standard of living. However, their position is not better off than other workers in the host state to which they have moved.

Part B

This question asks us to address a number of issues related to chicken sales. The first part of the question relates to a measure adopted by Hungary prohibiting the sale of chickens from Germany. This measure was taken in response to suspected outbreaks of avian diseases on German farms.

While Articles 28 prohibits quantitative restrictions on imports of goods within the EU and Article 29 prohibits the same restrictions for exports, Article 30 contains a number of derogations that are relevant when looking at the action which has been taken by Hungary. As Article 30 states, 'the provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial or commercial property.'

The ECJ, viewing Article 30 as potentially creating scope for abuse has interpreted this provision strictly, and in the Irish Souvenirs case[22] it held that the list of derogations in Article 30 was exhaustive and no new categories would be permitted. Considerations such as consumer protection or commercial fairness would not therefore justify discriminatory measures.

Another way in which the ECJ has sought to prevent Member States from abusing Article 30 has been by preventing its use in situations where the Member State has in fact been pursuing some ulterior economic objective. In Commission v Italy,[23] this rule was set out while in an earlier case between the Commission and the Italian Government,[24] the ECJ held that the fact that the Italian pig industry was showing signs of systemic failure did not justify protective measures. In the present circumstances this is highly relevant as it means that there can be no ulterior motive for Hungary's banning of German chicken, other than the purpose of protecting Hungarian chickens, other livestock, humans or human health, or commercial property that could conceivably be threatened by the avian diseases at issue. The burden will be on the Hungarian authorities to show that the German chickens would jeopardize one of the permitted grounds for imposing restrictions and this would be done through bringing scientific data and expert reports on the issue before the Council. This would be necessary in the event that the German authorities made an appeal against the Hungarian measures.

The protection of health and life of humans and animals is the most frequently invoked of the Article 30 derogations, and while each Member State is free to determine the standard of health protection that it desires for its nationals, in the absence of Community harmonization measures, and subject to the climate, diet, living standards and normal state of health of citizens, the ECJ does police restrictions invoked under this exception. The case of Openbaar[25] demonstrated the degree to which Member States would have to support any claim that the health of citizens or animals is under threat while Commission v United Kingdom[26] shows that the measure has to be part of a broader and well conceived health strategy for the nation and which requires the imposition of the restriction in the case.

An example of Article 30 being invoked for the protection of animal lives is the case of Bluhme[27] in which the court held that 'measures to preserve an indivenous animal population with distinct characteristics contributed to the maintenance of biodiversity,' and was therefore justified.

It appears therefore as if the Hungarian government have good grounds for imposing their ban on German chickens. Assuming the Hungarian government can show scientifically that the avian diseases are a threat to human health or life, and that their ban is part of a thought out public health strategy, or alternatively, that the diseases threaten animal populations, probably by showing that the diseases are communicable or contagious, then it is likely that their ban is capable of falling within Article 30.

However, it is also a requirement under Article 30 that any derogations made under it do not 'constitute a menas of arbitray discrimination or a disguised restriction on trade between Member States.' In Henn and Darby[28] the issue at stake was a UK prohibition on the importation of certain pornographic materials. While the plaintiffs could show certain inconsistencies in the UK laws, the ECJ held that as a whole, the true purpose of the rules subject to dispute was to protect morals and was not a disguised restriction on trade, and the rules were therefore justifiable.

A more controversial use of the provision arose in the Turkeys case[29] in which the UK introduced a new slaughter policy to deal with a disease that infected turkeys known as Newcastle disease. The new policy was in place of a previous vaccination policy that was held to be less effective by evidence brought forward by experts in support of the UK approach. In support of the slaughter policy, the UK banned turkey imports from all Member States except Denmark and Ireland, on the ground that since there would no longer be vaccinations in the UK, imports of possibly effected animals would threaten the British stock. However, the ECJ was willing to look behind the UK policy and found that the true reason for the shift in policy was not to better combat Newcastle disease at all, but to provide an excuse for blocking turkey imports from France in particular, which had greatly increased sales of turkeys in the UK. The timing of the change in policy was also planned to coincide with the 1981 Christmas period. Also, because of a lack of convincing scientific study or discussion surrounding the policy shift, the ECJ found that it could not 'form part of a seriously considered health policy.' Also, because there were less economically damaging methods of dealing with the threat of Newcastle disease, the policy also failed a test of proportionality.

In conclusion therefore, if the Hungarian measures are to be upheld, it will have to be shown that they are truly targeted at protecting health and are not actually part of an economic strategy. It will also have to be shown that the measures are part of a well thought out health policy and that they are proportionate.

The second part of the question asks us to deal with some retaliatory measures implemented by Germany.

  1. This measure requires all chickens imported into Germany to undergo a health inspection. It is arguable that such a requirement would improve the health of the chicken stock or reduce the risk of diseases spreading. However, as the Turkey case demonstrated, there is virtually no chance that a measure adopted in the interest of health protection of animals would pass ECJ scrutiny unless it made equally stringent requirements on domestic producers. It appears as if the German measures have been adopted solely against imported chickens and that domestically produced chickens are not subject to the same health checks. Therefore, it is unlikely that the motive of the measure is anything but economic. Also, the timing of the measure, coming as it does on the tail of the Hungarian prohibition on German chickens would also suggest that the measure was retaliatory in nature.
  2. The second measure bans advertising of chicken on German media. There is nothing to tell us if this measure is targeted solely at imported chickens so it is likely that the advertising ban applies equally to domestically produced and imported chickens. The difficulty that the German authorities are likely to come up against in respect of this measure is that it could be construed as a measure having an equivalent effect to a quantitative restriction. In the case of Geddo v Ento Nationale Risi[30] the ECJ defined a quantitative restriction as' measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit.' A measure preventing the advertising of chickens would have the effect of reducing chicken sales and therefore imports, particularly if domestically produced chickens are seen as defective in current market circumstances. Therefore, the German measure is likely to be seen as a measure having an equivalent effect to a quantitative restriction. It is difficult to see on what grounds the German authorities would seek to justify the measure and therefore, it is likely that the ECJ would strike down the measure as being in breach of Article 28 were it to be challenged by the Commission or another Member State, or indeed a private party.
  3. The final requirement is that all chicken-based products sold in German be contained in clear, rectangular containers which display the place of origin of the farm. There are legitimate reasons why customers would want to know the origin of agricultural produce and requiring them to be clearly labeled would probably not be problematic, so long as there was no evidence that the German authorities had some ulterior motive for bringing in the requirement. It would also be necessary for the requirement to apply equally to German as well as imported chicken based products. If there was evidence that the authorities were trying to encourage some sort of backlash against Hungarian farmed chickens the measure would be struck down. It is also difficult to see on what grounds the German authorities would justify the requirement that the chicken product be packaged in a clear, plastic, rectangular container as this would be unlikely to effect the product. Therefore, this part of the requirement might be struck down as ineffective and disproportionate.

Bibliography

  1. Case 36/74 Walrave and Koch v Association Union Cycliste Internationale [1974] ECR 1405
  2. Case C-415/93 Union Royale Belge des Societes de Football Association and others v Bosman [1995] ECR I-4921,
  3. Case C-281/98 Angonese v Cassa di Riparmio di Bolzano SpA [2000] ECR I-4139
  4. Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119
  5. Case C-415/93 Bosman [1995] ECR I-4921
  6. Directive 2004/38/EC of the European Parliaments and 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC. 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
  7. Case 118/75 Watson and Belmann [1976] ECR 1185
  8. Case C-208/05 ITC Innovative Technology enter GmbH v Bundesagentur fur Arbeit [2007] ECR I-000
  9. [1968] OJ Spec Ed I-475, amended by Reg. 312/76 ([1976] OJ L3/2) and Council Reg. 2434/92 ([1992] OK L25/1)
  10. Case C-283/99 Commission v Italy [2001] ECR I-4363
  11. Case 167/73 Commission v France (French merchant seamen) [1974] ECR 359
  12. Case C-15/96 Kalliope Schoning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47
  13. Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I-2703
  14. Case C-224/01 Gerhard Kobler v Republik Osterreich [2003] ECR I-10239
  15. Case C-175/88 Biehl v Administration des conributions du grand-duche de Luxembourg [1990] ECR I-1779
  16. Case C-279/93 Schumacker [1995] ECR I-225
  17. Case 207/78 Criminal Proceedings against Even [1979] ECR 2019
  18. Ellis, E., Social Advantages: A New Lease of Life, (2003) 40 CMLRev. 639
  19. Case 94/84 ONEM v Deak [1985] ECR 1873
  20. Case C-3/90 Bernini v Minister van Onderwijs en Wenenshappen [1992] ECR I-1071
  21. Case C-147 Commission v Austria [2005] ECR I-5969
  22. Case 113/80 Commission v Ireland [1981] ECR 1625
  23. Case 85/81 Commission v Italy [1982] ECR 2187
  24. Case 7/61 Commission v Italy [1961] ECR 317
  25. Case 118/86 Openbaar Ministries v Nertsvoederfabriek Nederland BV [1987] ECR 3883
  26. Case 40/82 Commission v United Kingdom (turkeys) [1984] ECR 2793
  27. Case C-67/97 Criminal Proceedings against Ditlev Bluhme [1998] ECR I-8033
  28. Case 34/79 Henn and Darby [1979] ECR 3795
  29. supra. (no. 26)
  30. Case 2/73 Geddo v Ente Nationale Risi [1973] ECR 865
Print Email Download

Share This Essay

Did you find this essay useful? Share this essay with your friends and you could win £20 worth of Amazon vouchers. One winner chosen at random each month.

Request Removal

If you are the original writer of this essay and no longer wish to have the essay published on the UK Essays website then please click on the link below to request removal:

Request the removal of this essay.


More from UK Essays

Need help with your essay?

We offer a bespoke essay writing service and can produce an essay to your exact requirements, written by one of our expert academic writing team. Simply click on the button below to order your essay, you will see an instant price based on your specific needs before the order is processed:

Order an Essay - via our secure order system!