Chapter 4. The free movement of persons
| Pages | 78-124 |
| Author | Gareth Davies |
CHAPTER 4
THE FREE MOVEMENT OF
PERSONS
The law of the free movement of persons is layered. At the bottom is a
mass of secondary legislation dealing with the specific issues relevant to the
different kinds of person moving around Europe, and spelling out their
rights. Most of this may soon be replaced by a single, global, directive (this
is discussed under ‘citizenship’) but for the moment it remains.
Above this are specific articles in the EC Treaty for each category of
person. The secondary legislation must come within its article—it is merely
a detailing of what the article says more generally, and it cannot extend the
scope of the article. The article is the authority for the legislation. This
means that secondary legislation is always conditional, to be overturned and
removed if it is found to in fact be in conflict with the basic principles of
the Treaty article. However, the article may go beyond the secondary
legislation. Thus the articles remain important, even where secondary
legislation exists.
Top of the pile is Art 12 EC, which is a general prohibition on
discrimination, applying to all areas of the Treaty. It is not formally superior
to other Treaty articles, but it is more general, and it serves as a reference
point, helping to establish a uniform and Treaty-wide applicable principle
of discrimination. In this way it irons out many of the differences between
categories. Most of the law seems to be just application of the non-
discrimination principle. This often makes one wonder whether all the
detailed rules actually perform any function any more.
The answer is that in practice they do; they are the practical day-to-day
tools that the Court and lawyers use to decide what the general principles of
law mean in particular situations. There is also a general principle in many
European legal systems that where a specific law and a more general one
both exist, one should turn to the specific first—the lex specialis rule.
Therefore, even if the secondary legislation adds no conceptual content to
the law, it is necessary to know it.
In this chapter the aim is first to introduce the specific secondary
legislation and Treaty articles dealing with different categories of person.
The application of Art 12 is also considered to a certain extent. Full
discussion of the application of Art 12 is found in Chapter 8.
4.1 WORK ERS
The free movement of workers is governed primarily by Art 39 EC. This
states that:
1. Freedom of movement for workers shall be secured within the
Community.
2. Such freedom of movement shall entail 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.
3. It shall entail the right, subject to limitations justified on grounds of
public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of member states for this
purpose;
(c) to stay in a member state for the purpose of employment in
accordance with the provisions governing the employment of
nationals of that state laid down by law, regulation or
administrative action;
(d) to remain in the territory of a member state after having been
employed in that state, subject to conditions which shall be
embodied in implementing regulations to be drawn up by the
Commission.
4. The provisions of this article shall not apply to employment in the
public service.
The exceptions to movement found in paras 3 and 4 are dealt with in
Chapter 7.
Although there are some quite specific examples of what free movement
of workers requires, in paras 2 and 3, there is also a very general statement
in para 1. Thus we cannot assume that paras 2 and 3 describe the whole
extent of free movement of workers, and in fact they do not. Paragraph 1 is
sufficiently vague to allow a very broad development of free movement by
the Court, and this is what has occurred.
The first question to consider is ‘who is a worker?’. Which people are
covered by this article? Then one may ask ‘what are their rights?’.
4.1.1 Who is a worker?
4.1.1.1 Who decides?
The word ‘worker’, or its equivalent in other languages, may be used in
different ways in different countries. Issues of translation, social practice
and law might make a difference to how judges and people would
understand it. However, the term as it appears in the Treaty is a term of
Community law, and therefore has a Communitywide meaning to be
interpreted by the Court. National judges may not interpret in the light of
national systems. They must accept this Community interpretation. The
Court has what Advocate-General Mancini has called a ‘hermeneutic
monopoly’.
4.1.1.2 What is work?
The Court has said ‘the essential feature of an employment relationship…
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’.1
This is not enough though. It seems as if the work must also be of value
to someone other than the would-be worker. In Bettray2 the Court
considered a programme where drug addicts were rehabilitated through
being provided with work. The jobs were specially created and supervised,
and the idea was to gradually train people back into normal employment.
The Court decided this did not count as work, and the participants were not
workers. The people were not chosen for their ability to do the job; rather
the jobs were created for the people. Moreover, the whole programme
existed only to provide jobs for the participants, not to perform any other
useful function.
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