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F r e e M o v e m e n t o f Wo r k e r s

To keep the differences between nations, e.g. cultural, while being united, is perhaps the highest achievement of the European project and maybe the key to its success. The abolition of the physical barriers, while keeping the virtual barriers of culture, language and the like, might prove to be a re uirement for the achievement of an internal market of circa !"" million people, able to move freely within the whole continent for economical and leisurely purposes. Whether such an aim is achieved or otherwise is the purpose of this article. The architects of Europe have taken a categorical approach towards the e#tent to which freedom is enjoyed in another member state. $s long as there is an economical activity, they are separated into the free movement of workers, freedom of establishment, freedom of providing services and free movement of goods, otherwise known as the %four freedoms%. The principles which govern these freedoms do not defer greatly, however the focus of this article will be on the facilitation of the free movement of workers by the E&', starting with defining what a worker is, their rights of entry and residence, the rights of their families, the social advantages which they may enjoy, briefly go over the limitations and conclude with citi(enship. Free movement of workers was established in $rticle )* of the E& treaty and laid out in much more details in +egulation ,-,./-0 which deals with eligibility of employment, e uality of treatment and the rights of a worker%s family. $ worker is not e#plicitly defined in either the article or regulation, however they both intended the definition of a worker to be one at a community level so as to avoid the p ossibility of member states defining a worker in such a way as to restrict their rights. , 1n Lawrie-Brum. a worker was defined as a person who %for a certain period of time performs services for and under the direction of another person in return for which he receives remuneration.% The definition of a worker has been given a wide interpretation under community law as shown by the case of Staymann) in which although his remuneration was that of being looked after by the religious community in return for charity work, he was considered a worker. This case is contrasted with someone who is %under a rehabilitation scheme%. They are consider to be carrying out compulsory work which is more of a social activity than an economical activity, therefore they are not considered as a worker. 2 $nother restriction upon the definition of a worker is that the work should not be ancillary or marginal. ! This can be illustrated by the case of Mr. Brown- in which it was decided that while a student who works in a country and then leaves voluntarily to go on to take further studies could be considered a worker, Mr. 3rown was not as his work was incidental in as far as it was taken because his studies re uired it. The right of entry and residence have been e#panded by case law. The right of residence for si# months can be e#tended if the person shows that he is actively seeking and has a real chance of getting employment. The deportation of a work4seeker or his imprisonment simply because he does not have the right papers is now greatly

limited under very narrow circumstances by E&' case law. Finally the E&' has established that a worker has the right to stay after employment in the host country. 1t seems therefore that the rights of a worker fall short only in as far as they do not have access to benefits prior to having worked in that member states. $ worker has to finance himself for the first si# months, or maybe more, while he is looking for work for the first time in a certain member state. The reasons for such restriction might be understandable. To use a recent e#ample, if a citi(en of the E5 was allowed access to benefits while looking for a job before he or she has carried out any work whatever in that member state, perhaps the number of migrants from the new E5 member states to the old member states might have doubled and maybe even tripled. 6owever, such transitions seems to be a temporary occurrence as it may be argued that once the standards of living in the new member states increase and more importantly they have a social security system which can be considered to be on e ual footing to that of other member states, there would not be such movement for the sole purpose of accessing benefits. 1t could be assumed that prior to the enlargement, with the ,! member states being on e ual footing and one assumes all of them having a benefits system, the restriction of access to benefits before having carried out any work in the member state might be an unnecessary deterrent to the free movement of workers. 1t may be clear by now however, that if a worker has been working in a member state he is entitled to benefits. The worker%s family are entitled to join him or her and reside with the worker for as long as the worker is there and in some cases such as death, or in circumstances involving children, they might be allowed to stay further. 6is family for the purpose of E5 law consists of the spouse and any dependants, such as his children under the age of ., which depend on the worker economically. The case of Commission v Germany shows that they do not have to live under the same roof, while not being divorced, to have a right of stay in the country. The E&' has been narrow in defining a spouse however, which may effect the way cohabitants are treated by the law. 1n the case of Netherlands State v. Reed, 7 Ms +eed went to 8etherlands to cohabit with a worker. $s the term spouse %refers to a marital relationship only%, the Member 9tate tried to prohibit her move. 6owever, as 8etherlands% law confers upon individuals in such a relationship the same rights as married couples, they could not refuse entry as that would be direct discrimination on bases of nationality. 1t seems that in this aspect the E5 has refrained from harmoni(ing the law within the community, opting instead for what could be termed as a %bottom up% approach. 1n other words, the E5 law allows the member state a margin of appreciation as to how it treats his own nationals and then the E&' applies the golden rule of no discrimination based on nationality. 1nevitably therefore, the uestion arises as to whether such approach amounts to an obstacle on the free movement of workers as, to illustrate, supposing that in 8etherlands cohabitants are treated as married couples as far as the law is concerned, but not say in 9pain or 1taly. $ citi(en from 8etherlands therefore may be deterred from moving to 9pain or 1taly as his partner may not be able to join the worker. 1n other areas, an E5 worker does enjoy many rights, amongst which the so called %social advantages%. The principles which govern the eligibility of %social advantages% seems to be based on a common theme of free movement that a member state may not discriminate on the basis of nationality. 1n Reina0 she was entitled to a

child birth loan under the :erman law although she was an 1talian national, while Mr. Mutsch* was entitled to speak in :erman and have the court proceeding in that language while being in 3elgium as that province allowed 3elgian nationals to do the same. 9ocial advantages can be so varied as to include an entitlement of a reduced fee for rail travel as shown by the case of Cristini. ," 1t can be seen therefore that the rights a worker enjoys across member states are vast and may be considered to fall short in limited categories and narrow circumstance from being e ual to that of a national of the host member state. 9ome of these categories may include the ability to limit free movement of a worker based on public policy, security or public health, it may also include some high ranking posts within public services. These limitations may be illustrated by the case of Van Duyn.,, ;irective -2/..,/EE& has direct effect in limiting free movement of workers on ground of public policy, security and health. 6owever, it states that such limitations< %should be based e#clusively on the personal conduct.% The =an ;uyn case is interesting as while 3ritish nationals were able to work for scientology, the 5> was allowed to refuse her entry as it considered sociology %socially harmful%. 1t must be noted however that this was one of the early cases, therefore the E&' perhaps had to be prudent. 1t is not clear whether such decision would be upheld if it appeared before the E&' again. 1f free movement of workers is to be achieved within the european internal market, then the principle of e ual treatment and prohibition of direct and indirect discrimination might be considered as a just principle to aspire to. From the above case analysis, it seems clear that the E&' has tried to interpret widely such concepts as a worker, so as to give ma#imum effect to e ual treatment. The aspiration towards these principles has been made easier with the introduction of a European &iti(enship. 6owever, while a European &iti(enship might be a welcomed move towards eradicating further any barriers to the freedom of movement, it does leave much to desire. 8ationality has been left to Member 9tates to be defined which might cause purposive, or otherwise, restrictions to the concept of E5 citi(enship. Furthermore, the effectiveness of the citi(enship may also be criticised for being derives from the individual%s citi(enship of an E5 member state. ?f course otherwise it would mean a European @assport which might steer the E5 or rather accelerate the E5%s direction and more importantly, perhaps the citi(ens of E5 members states are not ready yet for an E5 @assport. 8otwithstanding the above criticisms however, the European &iti(enship may be considered as a worthy initiative towards further internalisation of the market and the facilitation of the free movement of workers. The concept of citi(enship is still in its infancy however, therefore it is yet to be seen how far reaching it will be. $side from the above mentioned limitations and obstacles to the free movement of workers, the E&' case law may be considered to have facilitated effectively the achievement of E5%s objective of an internal market where people, capital, and goods, are able to move freely. +ome tried it and failed, so did 8apoleon and 6itler. This time it seems it is here to stay. The golden rule of member states treating other E5 workers as e uals with their own nationals seems to have worked well in the achievement of such a task which &hurchill saw as a dream. 1t might not be long therefore until those few obstacles to the free movement of workers which have been highlighted in this article are completely eradicated.

Article 234 EC - Preliminary Rulings


Image Courtesy of the European Union Article 234 EC Treaty former Article !"" ECC Treaty# gi$es the EC% the po&er to interpret an Article of the EC Treaty an' interpret or rule on the $ali'ity of community secon'ary legislation such as regulations or 'irecti$es( The article also empo&ers a court or tri)unal of a *em)er +tate to re,uest a preliminary ruling )y the EC% on the interpretation or $ali'ity of community la&(

In the case of Dorsch Consult ! the EC% state' that to 'etermine &hether a )o'y is a court or tri)unal 'epen's on si- tests.

These tests concern the manner of esta)lishment of the )o'y/ &hich must ha$e )een esta)lishe' )y la& an' not )y agreement )et&een the parties0 its connection to the e-ercise of pu)lic authority0 its permanent nature/ in the sense that it must not e-ercise a 1u'icial function only on an occasional )asis0 its competence to resol$e a 'ispute )y a 'ecision of a 1u'icial nature0 the con'uct/ )efore it/ of a proce'ure analogous to that &hich is follo&e' in or'inary courts of la&/ in$ol$ing &ithin the limits 'iscusse' a)o$e# e-change of argument inter partes 0 the application )y the )o'y in ,uestion of rules of la& rather than principles of fairness#0 compulsory 1uris'iction/ &hich means that alternati$e reme'ies are not a$aila)le0 an' finally in'epen'ence/ in the sense that it acts as a thir' party in relation to the parties to the 'ispute an' that its mem)ers may not )e remo$e' from office(2 2Un'erlining A''e'3

4ot all of these tests nee' to )e satisfie' ho&e$er( 5or e-ample/ in Broekmeulen 3 &hich concerne' a )o'y a)le to 'etermine as to &ho can practice as a me'ical professional/ although the )o'y &as not esta)lishe' )y la&/ the EC% state' that.

In the practical a)sence of an effecti$e means of re'ress )efore the or'inary courts/ in a matter concerning the application of Community la&/ the Appeal Committee/ &hich performs its 'uties &ith the appro$al of the pu)lic authorities an' operates &ith their assistance/ an' &hose 'ecisions are accepte' follo&ing contentious procee'ings an' are in fact recognise' as final/ must )e 'eeme' to )e a court of a mem)er-+tate for the purpose of the Treaty(4

6o&e$er/ in Nordsee7 the EC% hel' that an ar)itrator or ar)itral )o'y is not a court or tri)unal as it is 8chosen in preference to recourse to the or'inary courts8 that is/ it is not of a compulsory 1uris'iction an' there is no in$ol$ement )y the pu)lic authorities in the ar)itration(

If a )o'y is a court or tri)unal/ for the purpose of article 234 proce'ures for re,uesting a preliminary ruling/ such )o'ies are 'i$i'e' into permissi$e an' man'atory 1uris'iction( The latter are those courts 8against &hose 'ecision there is no 1u'icial reme'y un'er national la&8( That is/ you can not appeal to a higher court( These courts are of a man'atory 1uris'iction as they must refer to the EC% for a preliminary ruling on the $ali'ity or

interpretation of EC la& if it is necessary to gi$e 1u'gment( All other courts are of a permissi$e 1uris'iction( +uch courts ha$e 'iscretion as to &hether to re,uest a preliminary ruling(

In )oth instances the preliminary ruling must )e necessary to gi$e 1u'gment( The re,uirement of necessity &as interprete' in the case of CILFIT9 &here the EC% state' that a court of tri)unal/ regar'less of the 1uris'iction/ shoul' not refer to the EC% if the ,uestion is not rele$ant - 8that is to say/ if the ans&er to that ,uestion/ regar'less of &hat it may )e/ can in no &ay affect the outcome of the case(8" A reference is not necessary also &hen the ,uestion has alrea'y )een su)1ect to a preliminary ruling/ e$en if the ,uestion is not strictly i'entical/ pro$i'e' that it is materially i'entical( : 6o&e$er this 'oes not preclu'e a court or tri)unal &hether of man'atory or permissi$e 1uris'iction from referring the ,uestion to the EC% - +ee ;a Costa <( 5inally/ it is not necessary to refer to the EC% if the court or tri)unal consi'ers the correct interpretation of EC =a& to )e o)$ious to the court/ the courts of other *em)er +tates an' the EC% so as to 8lea$e no scope for any reasona)le 'ou)t8!> as to its correct application( To meet the re,uirement of the latter circumstances is fairly 'ifficult for there may )e language )arriers )et&een 'ifferent national courts or 'ifferences in terminology )et&een the EC% an' national courts( The ?ritish courts for e-ample use the system of common la& &hich 'iffers su)stantially from the system of ci$il la& that the EC% uses ma@ing it thus sufficiently 'ifficult to meet the high stan'ar' of o)$iousness re,uirement(

The practical effect of the CI=5IT interpretation is material mainly in regar's to man'atory 1uris'iction as it may pro$i'e them &ith the li)erty to not refer to the EC%( Courts of permissi$e 1uris'iction ha$e such li)erty as of right( The EC% has therefore issue' gui'elinesas to &hen a court of permissi$e 1uris'iction shoul' refer to the EC%( The main one is 8&hen there is a ne& ,uestion of interpretation of general interest for the uniform application of Community la& throughout the Union8( That is possi)ly/ a ne& ,uestion of interpretation of general interest or a ,uestion &hich may lea' to the uniform interpretation of EC =a&(

Also/ a national court can not 'eclare an EC la& to )e in$ali'( Thus/ if the $ali'ity of the EC la& is in ,uestion/ the national court might fin' it 'esira)le to refer to the EC% &hich can rule on the $ali'ity of an EC la&(

These are ho&e$er only gui'elines( The court retains its 'iscretion( The EC% too might refuse to accept a re,uest for a preliminary ruling if there is an a)sence of a genuine 'ispute/ !! or it is not pro$i'e' &ith the factual information/!2 or the ,uestion concerns the compati)ility of national la& &ith community la& as the EC% can only interpret EC la&(
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