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Free Movement of Workers

The ‘broader notion of EU solidarity [is] the underlying aspiration of integration of peoples of Europe’, revealed through the fundamental concepts of free movement of workers, persons, goods and capital, especially following the Case of Hoekstra during which the ECJ defined the term ‘worker’ to reflect the ethos of the European Community. The Single European Act, and the Treaties of Maastricht, Amsterdam and Nice have reflected the changing ethos associated with altering social policies which now require a greater accountability.

The many Treaties, spanning from 1957 to 2000, have now been incorporated within the new Constitution of 2004 to reflect the philosophy unilaterally established amongst all Member States, with various benefits exemplified. One of the more acceptable facets of this new Constitution is the concept of unification of nations, with the emphasis representing recognition of the autonomy of individual states. This essay focuses on the ECJ's construal of the right to free movement of workers which is perceived to have a liberal interpretation.

DISCUSSION

The Treaty of Nice, containing the Charter of Fundamental Rights, is intended to strengthen national borders against terrorism and illegal immigrants and is expected to benefit the Member States in the global economy when relating to the ‘super-state powers’ of China, Russia and America and reduce social exclusion and discrimination. The new Constitution of 2004 has been described as portraying a “respect for human dignity, liberty, democracy, equality, the rule of law and human rights”. One of the four significant freedoms, revealed in Article 39 of this EU legislation, is the universal recognition of the free movement of workers, the other three fundamental areas being the free movement of goods, services and capital. To investigate one of the direct effects of Article 39 it is, however, necessary to define what is meant, in EU terms, as a ‘worker’. The ECJ distinguish a ‘worker’ as:

‘any person who pursues activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, will be treated as a worker’.

This is particularly relevant in terms of the extent Article 39 relates to reserved employment such as the armed forces and public services, to family members of workers who are also protected by EU legislation, to claims for pensions and social security rights and, according to the Simuntenkov ruling of 12th April 2005, to professional sports players.

Igor Simutenkov, employed as a professional football player by Club Deportivo in Tenerife, was refused a professional soccer licence by the Spanish Soccer Federation due to a restriction placed on non-EU soccer players competing at national level. Being unable to determine an appropriate solution they brought the case to the Court of Justice. The ECJ resolved the case on the basis of its definition of a ‘worker’, together with the 1994 Agreement on Partnership and Co-operation between the EU and Russia which ensures that, according to employment law, Russian workers were entitled to exactly the same treatment as EU workers.

“…a professional footballer playing for a club is carrying out an economic activity and…the player is protected by employment laws”

The Bosman ruling by the ECJ in 1995 led the way for freedom of movement for EU players, whilst a further ruling in 2003 enabled players from countries, such as Israel and Romania, together with the States from the former Soviet Union, all of which have partnership agreements with the EU, to be considered under the same legislation as that entitling the freedom of workers within the Member States. Advocate-General Christine Stix-Hackl posited, in January 2005, that the rights of foreign workers’ from many countries other than existing Member States, are protected. This opinion was confirmed by the ECJ in the above ruling, given on 12th April 2005, which also now enables citizens’ fundamental rights, and that of sporting associations, to be protected from countries which have agreements with the European Union being considered under the same legislation as that existing for the free movement of workers within the EU.

According to EU legislation all that is required to enter any Member State is a valid passport or identity card and to have sufficient money to support themselves without becoming a burden on the host nation, although there is no requirement for them to prove they are financially independent. According to Directive 68/360/EEC and Directive 64/221/EEC a number of Regulations exist which relate to the free movement of workers within EU Member States. Article 12 prohibits discrimination on the grounds of nationality, whilst Articles 39 and 43 both relate to other provisions involving rights of access within EC countries. Article 50 might also be relevant as it appertains specifically to the freedom to provide services. Particularly relevant to the concept of free movement of workers would be an expectation of a right to equal treatment which precludes an individual country adversely expressing its own public policy, public security or public health in an attempt to limit the movements of EC Nationals.

Accordingly, any advertised job vacancy is equally available to all EU Nationals, although a country may preclude any job if it is likely to either threaten public order or is associated with State interests, e.g judiciary, armed forces. However, as elucidated by the April 2005 ruling, those countries also include all non-EU countries covered by an agreement, such as those already mentioned: other countries include Norway, Sweden and those countries currently classified as Associates - due to join the Member States within the near future.

EU legislation covers the freedom of movement for workers designed to ensure all workers benefit equally in respect of visas, asylum, immigration and, although each Member State retained the right to protect its own social security entitlement, certain regulations recognise a system of aggregation. In terms of assistance needed for those workers without jobs, Regulations (EEC) No 1408/71 and No 574/72 express the legislation surrounding social security entitlements throughout the Member States and, although proposals were underway to implement a more acceptable alternative to Regulation No 1408/71, this has yet to be ratified and, in the wake of Agreements incorporated into the Treaty of Nice in 2004, would appear doubtful.

Regulation (EEC) No 1408/71 incorporates national legislation that guarantees equal treatment within all Member States and which implements a system of aggregation to calculate previous employment. This means that contributions that might have already been made would be taken into account when applying for benefit elsewhere in the EU. This Regulation also guarantees social security benefits for family members of any workers within the Member States regardless of where they are living or where they are currently working. Accordingly, even though a ‘broken insurance record’ might straddle different Member States, a claim for benefit may not be rejected simply because an individual cannot be classed as a worker at the time of applying, according to the Principle of Equality of Treatment. This could possibly be categorised within the ruling, made by the ECJ, of ‘indirect’ discrimination. However, a lot would depend upon an individual’s social security contribution history and would still relate to the total time actually worked (and contributed) over the previous three years - aggregated between Member States.

A family member residing with an EU recognised ‘worker’ may register as ‘actively seeking work’ by producing the relevant documentation from their own country. However if, after three months, work was not found, it would be necessary to re-register with the Employment Services in their own country of origin to prevent loss of accrued entitlement in accordance with Article 69, Regulation (EEC) No 1408/71. Following a qualifying period all EU workers are eligible to social security entitlements in the country they have been working, regardless of their country of origin, whilst also being expected to contribute equally to any required State contributions, including tax. In return for their contribution payments all workers would be entitled to claim sickness and maternity benefit, family allowance, and disability or retirement pension.

It would also be possible to claim for unemployment benefit, accident or death benefit and, if married, widow/widower’s benefits if their spouse pre-deceases them. Once a worker reaches retirement age, generally accepted as being 65 in many EU States, they would be able to claim a full retirement pension as long as they had fulfilled a full three years’ residency beforehand. Any accident a worker suffered which prevented them from working would be covered by benefit as long as they had completed two years residency prior to this potential situation occurring although they would have to apply within two years for this right to be recognised.

Certain Protocols, relating to the UK, the Republic of Ireland and Denmark, allow each of these three countries to be exempt from a number of issues relating to complete freedoms recognised within the EU in accordance with the Treaty of Amsterdam TEC Part III and IV and the Schengen Agreement. These derogations also enable each of these three countries to opt back into full agreement retrospectively in accordance with an ‘accession mechanism’.

CONCLUSION

The basic concepts of the European Community was always to integrate the peoples of Europe. Accordingly, in correlation with its own ethos the ECJ interprets freedom of movement to be integral to the greater accountability associated with the changing social policies introduced by the Treaty of Rome and developed in the Single European Act, and the Treaties of Maastricht, Amsterdam and Nice. Following the Treaty of Amsterdam the definitions associated with free movement of workers was elaborated to encompass ‘third country nationals’, relating directly to the free movement of persons, involving workers and their dependents and, upon application, other members of their families.

The ECJ recognises the term ‘worker’ in a broad explication according to the ethos of the ‘broader notion of EU solidarity’, the direct effect of Article 39 being interpreted both vertically and horizontally as revealed through the ECJ rulings in favour of various Sports Associations. A previous Advocate-General described the ECJ as having a ‘hermeneutic monopoly to counteract possible unilateral restrictions of application of rules on the freedom of movement of workers by the different Member States’. In order to maintain this monopoly the ECJ distinguish a ‘worker’ as:

‘any person who pursues activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, will be treated as a worker’.

This definition is so broad and all encompassing that it can be applied to a diversity of situations, more than adequately reflecting the ethos of the European Community in accordance with the Treaty of Nice and the potential for the future Constitution of Europe, if ratified, in 2006. The new Constitution was sensationalised by the Media, although the intention was to bring the EU closer to the people with the Daily Mail reporting:

“It will create a new European state of which we will all be citizens. It will be able to sign treaties and join international bodies and its law will supersede our own. Britain will become a mere region within its federal embrace”.

This new Constitution has been designed to encompass all the previously accepted Articles, taking into account the 50 accompanying Declarations which clarify the Charter of Fundamental Rights and which establish the European External Action Service and the full total of 38 Protocols, amongst which has been retained the four fundamental freedoms of EU law: the free movement of workers; the free movement of persons; the free movement of services; and the free movement of goods. These, in all the implied neo-liberalism associated with the broad interpretations applied to the definition of ‘worker’, constitute the most significant and fundamental policies to maintain the integration and solidarity of the citizens of the EU Community. The essence of the Third Pillar represents an ‘area of freedom, security and justice’ and can only be represented through this broad interpretation which, in some quarters might be described as a ‘wide interpretation’ but which relates to the progressive establishment intended by the ECJ.

BIBLIOGRAPHY

Books

Craig, Paul and de Burca, Grainne (2002): EU Law: text, cases and materials [3rd ed]. Oxford: Oxford University Press

Glockler, Gabriel; Junius, Lie; Scappucci, Gioia; Usherwood, Simon; and Vassallo, Julian (1998): Guide to EU Policies. London: Blackstone Press

Articles

Cook, The Guardian, 29/10/04

Evans, Matt, practising lawyer at SJ Berwin Solicitors in London, a specialist in EU and Competition Law: cited by McLeod, Robert, Jerusalem Post, 13th April 2005

Daily Mail, 29/10/04

McLeod, Robert (2005): Court Ruling may help Israelis play in Europe in The Jerusalem Post, 13th April 2005

Online Resources: [Sites visited 19/04/05]

Eriksen, Erik Odvar; Fossum, John Erik; Kumm, Matthias and Menéndez, Augustín Josí (2005): The European Constitution: the Rubicon Crossed? ARENA Report No 3/05, University of Oslo CIDEL Project, February 2005. http://www.arena.uio.no/cidel/Reports/ArenaReport305.pdf

Puig, Gonzalo Villalta (2003): The European Constitution: Past and Present. National Europe Centre Technical Report Paper, No 115, 28th November 2003. http://www.anu.edu.au/NEC/Puig_Constitution.pdf

Office for Official Publications of the European Communities (2000): Your rights when moving within the European Union. European Commission, Directorate-General for Employment and Social Affairs www.eurunion.org.htm
http://europa.eu.int/eur-lex/lex/en/repert/index.htm

Legislation

Treaty of Rome
Treaties Maastricht
Treaty of Amsterdam - TEU Art 2, 4th indent
Treaty of Nice
Charter of Fundamental Rights
Single European Act
Treaty of Amsterdam TEC Part III and IV
Schengen Agreement
Directive 68/360/EEC, Official Journal L 257, 19.10.1968
Directive 64/221/EEC, Official Journal No 56, 4.4. 1964
EU Treaty of Amsterdam, Article 39
EU Treaty of Amsterdam, Article 12
EU Treaty of Amsterdam, Articles 43
EU Treaty of Amsterdam, Article 69
EU Treaty of Amsterdam, Articles 50
Regulations (EEC) No 1408/71 and No 574/72
1994 Agreement on Partnership and Co-operation

SN 300/1/01 Rev 1: EU Council, Presidency Conclusion (Summit Declaration) http://ue.eu.int/igcpdf/en/04/cg00/cg00087-ad02re02.en04.pdf

CIG 87/2/04 Rev 2: Conference of the Representatives of the Governments of the Member States: Treaty establishing a Constitution for Europe. Brussels, 29th October 2004 http://ue.eu.int/igcpdf/en/04/cg00/cg00087-re02.en04.pdf

Addendum 1, Rev 1 CIG 87/04: Conference of the Representatives of the Governments of the Member States: Protocols and Annexes I and II annexed to the Treaty establishing a Constitution for Europe Brussels, 13 October 2004.
http://ue.eu.int/igcpdf/en/04/cg00/cg00087-ad01re01.en04.pdf

Table of Cases

ECJ press release No 03/35, 11 Jan. 2005: Igor Simutenkov: Opinion of Advocate General Stix-Hackl in case C-265/03 - Igor Simutenkov v Spanish football federation
http://www.euractiv.com/Article?tcmuri=tcm:29-135023-16&type=Analysis
[not yet released in EU Court report]

Bosman ruling, http://www.le.ac.uk/so/css/resources/factsheets/fs16.html

EU Website: http://europa.eu.int/eur-lex/lex/Result.do?arg0=Bosman&arg1=&arg2=&titre=titre&chlang=en&RechType=RECH_mot&Submit=Search

Case No: 61993J0415
Judgment of the Court of 15 December 1995.
Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman.
Reference for a preliminary ruling: Cour d'appel de Liège - Belgium.
Freedom of movement for workers - Competition rules applicable to undertakings - Professional footballers - Sporting rules on the transfer of players requiring the new club to pay a fee to the old club - Limitation of the number of players having the nationality of other Member States who may be fielded in a match.
Case C-415/93: European Court reports 1995 Page I-04921

61993C0415
Opinion of Mr Advocate General Lenz delivered on 20 September 1995.
Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman.
Reference for a preliminary ruling: Cour d'appel de Liège - Belgium.
Freedom of movement for workers - Competition rules applicable to undertakings - Professional footballers - Sporting rules on the transfer of players requiring the new club to pay a fee to the old club - Limitation of the number of players having the nationality of other Member States who may be fielded in a match.
Case C-415/93: European Court reports 1995 Page I-04921

EU Case 75/63: Hoekstra http://europa.eu.int/eur-lex/lex/Result.do?arg0=75%2F63+&arg1=&arg2=&titre=titre&chlang=en&RechType=RECH_mot&Submit=Search

EU Case 75/63: Hoekstra: 61963J0075
Judgment of the Court of 19 March 1964.
Mrs M.K.H. Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (Administration of the Industrial Board for Retail Trades and Businesses).
Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands.
Case 75-63.
European Court reports
English special edition Page 00177

EU Case 75/63: Hoekstra: 61963C0075
Opinion of Mr Advocate General Lagrange delivered on 10 December 1963.
Mrs M.K.H. Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (Administration of the Industrial Board for Retail Trades and Businesses).
Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands.
Case 75-63.
European Court reports
English special edition Page 00177

EU Case 36/74, Walgave v Koch: 61974J0036
http://europa.eu.int/eur-lex/lex/Result.do?arg0=36%2F74&arg1=&arg2=&titre=titre&chlang=en&RechType=RECH_mot&Submit=Search

Judgment of the Court of 12 December 1974.
B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo.
Reference for a preliminary ruling: Arrondissementsrechtbank Utrecht - Netherlands.
Case 36-74: European Court reports 1974 Page 01405

EU Case 36/74, Walgave v Koch 61974C0036
Opinion of Mr Advocate General Warner delivered on 24 October 1974.
B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo.
Reference for a preliminary ruling: Arrondissementsrechtbank Utrecht - Netherlands.
Case 36-74: European Court reports 1974 Page 01405

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