Free movement of workers

Work Seekers

It is in Article 39 (3) which provides the freedom of movement for workers to ‘offers of employment actually made’. It was uncertain whether the provision of this Treaty protects an individual who migrates to look for work rather to offers of employments actually made (subject to narrow application of Article 39). However in Case 48/75 Procureur du Roi the Court of Justice applied Article 39 (3) widely and it was permitted by the ECJ that work seekers were entitled to enter another member state prior to actively looking for work. Although this was decided, the courts did not decide how long this right was to continue. It was Antonissen that the courts held six months was a reasonable period of time, but a jobseeker may be worker but not indefinitely. However in Commission v Belgium, ECJ held that three months was also reasonable, provided it can be extended if the work seeker has genuine chances to do so.

It has been clarified that work seekers are entitled to entry of another member state. But ECJ has confirmed that work seekers have limited rights of residence and will not have the benefits that full worker status has. The current legislation continues to require an economic element either direct or indirect. The economic element for non workers lies in the fact that the citizens of the Union have a right to move freely, only if they do not require social assistance from the host member state. Oliveira (2002) points out it is still very much dependent on the enjoyment of ‘a degree of financial self-sufficiency’ in other words carrying out an economic activity or being in possession of sufficient resources. The court is not willing to impose on Member State the duty to finance the integration in its labour market for unemployed EU citizens. Account must be taken of considerations such as length of residence on territory, age, health, economic situation, social and cultural links integration and links with country of origin (Cases C- 482/01 and C-493/01 Orfanopoulos and Oliveri v Land Berlin-Württemburg, judgment of 29 April 2004). In Case 316/85 Centre Public v Lebon(1988) it was held that an individual seeking work has a right to equal access to employment under Article 39, but no right to social and tax advantages. This discrimination inhibits partial restriction to the free movement of workers. Because work seekers are not entitled to the full benefits enjoyed by full worker status, it is only necessary that the work seeker is to find employment, unless the work seeker has enough financial capital to reside in another Member State. Therefore we can claim that this is contrary to Community law on the provisions of free movement of workers under Article 39.

The ruling in Antonissen as Robin White so aptly remarks ‘seems a fair response to a tricky issue.’ (White 1992) In essence White argues that the ‘decision permits a reversal of the burden of proof of intent’. His argument reflects the provision of Article 39. The widest interpretation implies that all EC citizens have a right to enter a Member State and search for work. Indeed the sole purpose of the four freedoms established in European Law was for solely economic purposes (subject to the narrow interpretation of Article 39 (3) for employment purposes only). Nevertheless Advocate General Trabuchcchi in Case 7/75 F v Belgian State had stated that migrant workers are not regarded by Community law as sources of labour but as human beings. It is convincing that in this ruling it is not contrary of Community law regarding the free movement of workers to allow deportation of a national from another member state.

What mechanisms are available to member states? It appears that member states maybe able to exercise certain protective legislative measures to prevent the abuse of the system of member states to the host state. However these preventative measures need to acknowledge and allow the rights of a citizen of a member state enjoys under the free movement of workers directives and agreements. The freedom of movement of workers is subject to limitations on the grounds of public policy, public security and public health (EC, Art 39 (3)). States can remain free to deny entry and in Van Dyun v Home Office (1974), it was regarded that the definition of public policy can differ in Member States.  Referring back to the ruling in Antonissen this illustrates that it is not contrary to Community law however it is for the discretion of Member States regarding this matter.  The derogation grounds on public policy, health and security in the Directive 64/221 are important principles and as they do differ in member states the restriction is applied narrowly as seen in Case 115, 116/81 Adoui & Cornaille v Belguim.

The individuals past criminal convictions cannot in themselves constitute grounds for any public policy measures (art 3(2), Directive 64/221), and this was the case in Antonissen, however in Bouchereau the freedom of movement of workers was refused because it was held that he had convictions which was a genuine threat to society.

Conclusion

It seems that the right to enter a Member State in search for work is available to all EC citizens. The ECJ has interpreted Article 39 wide; the narrow interpretation of Article 39 (3) refers to free movement of workers to ‘offers of employment actually made’. However since the ruling in Royer and further in Antonissen has created  the right to enter a Member State in search for work, broad fundamental rights has derived from the Treaty itself (Article 39). The EC citizen who entered the territory of another member state in order to seek employment shall not be expelled for as long as the EC citizen can provide evidence that they have genuine chances of finding a job (article 14 (4). So the status of a job seeker is recognised by directive 2004/38 but duration of that right is not measured in years or months.

It is submitted that although there is some evidence in support for a narrow interpretation, the conclusion made in Antonissen appears to be the prevailing view.

Bibliography

Books

• Weatherill S and Beaumont P (1999) EU Law 3rd edn. London. Penguin
• Weatherill S (2003) EU Law cases and material. 6th edn. New York. Oxford University Press
• Vincenzi C and Fairhurst J (2003) Law of the European Community 4th edn. London. Longman
• Steiner, J and Woods, L (2003) Textbook on EC Law. 8th edn, Oxford University Press

Journals

• Castro Oliveira, A. (2002) ‘Workers and Other Persons: Step by Step from Movement to Citeizenship’ Common Market Law Review 39  pp.77 - 127
• White, R. (1992) ‘An update on Free Movement of Workers’. European Law Review 17 (6) pp.522-533
• Reich, N. (2005) ‘The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union’ European Law Journal  11 (6) pp. 675–698
• Carrera, S. (2005) ‘What Does Free Movement Mean in Theory and Practice in an Enlarged EU?’ European Law Journal  11 (6) pp.699 - 721

Electronic Sources

•  [online] [Accessed 14 February 2006]

 Table of Cases

• Case 115, 116/81 Adoui & Cornaille v Belguim [1982] CMLR 631
• Case 344/87 Bettray v Staatssecretaris van Justitie [1991] 1 CMLR 459

• Case C -138/02  Brian Francis Collins v Secretary of State for work and Pensions 
• Case 316/85 Centre Public v Lebon [1989] 1 CMLR 337
• Case 75/63 Hoekstra (née Unger) v BBDA [1964] CMLR 319
• Case 66 / 85 Lawrie-Blum v Land Baden-Württemberg [1987] 3 CMLR 389
• Case 53/81 Levin v Staatssecretaris van Justitie [1982] 2 CMLR 454
• Case 48/75 Procureur du Roi v Royer [1976] 2 CMLR 619
• Case C – 292/89 R v Immigration Appeal Tribunal, ex p. Antonissen [1991] 2 CMLR 373
• Case 196 / 87 Steymann v Staatssecretaris van Justitie [1989] CMLR 449
• Case 30/77 R v Bouchereau [1977] CMLR 800
• Case C-456/02  Trojani [2004] All ER (EC) 1065
• Maria Martinez Sala v Freistat Bayern [1998] ECR 12691
• Cases C- 482/01 and C-493/01 Orfanopoulos and Oliveri v Land Berlin-Württemburg
• Case 41/74  Van Dyun v Home Office [1974] ECR 1337

Table of European Community Treaties

• Article 18

• Article 39

• Article 39 (1)
• Article 39 (2)
• Article 39 (3)
• Article 39  (4)

Table of EU Secondary Legislation

Directives                                                                

• Directive 2004/38                                                
• Directive 64/221

Regulation                                                

• Regulation 1612 / 68

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