Article 39 of the treaty is concerned with the free movement of workers within the European community.

The courts have interpreted the term worker in terms of the residual relevance of the purpose of employment. The general rule hear is that the purpose for which employment is undertaken will not be relevant in determining whether a person is a worker. As already mentioned providing the employment is genuine and not marginal it will be protected by art 39. However there are exceptions where some account has been taken of the purpose of employment. In the case of Bettray paid activity provided by the state as part of a drug rehabilitation programme under its social employment law was held by the court not to represent “real and genuine economic activity”. Thus it would seem that in this case in order to give rise to the status of worker the work performed must fulfil, or derive from, some economic purpose. It should be noted that the principle in Bettray does not apply to ordinary sheltered employment. The undertaking in Bettray existed for the purpose of rehabilitation and re education of the persons that it employs.

The third aspect of the definition of worker comprises of those who are seeking work. Indeed it was held in the case of Antonissen that those who are actively seeking employment should have a “semi status” of worker. By this it is meant that where appropriate the court, by using the purposive approach could ensure some of the rights expressed in art 39 to an individual. This open ended approach allows the court to have the power to change the scope of the article in accordance with the changing social, economic and political status of the community. However the ECJ was also clear that the status of an EC national who was employed is different to one who is looking for work. For example there can be provisions such as unemployment insurance that cannot be used by some one who has never participated in the employment sector. In addition member states retained the power to expel a job seeker who has not found a job after a period of time.

Now that the term workers has been defined it is necessary to identify the rights given by community law to migrant nationals that are regarded as workers in the host state.

  The most important identifiable right is the right of entry that is implemented by directive 68/360.The directive states that workers who are E.C nationals and their families are entitled, on production of a passport or valid identity card to enter the territory of other member states in order to work. In the case of Procureur du roi v royer it was held that the definition set out in the directive should be construed generously. In fact the case gave E.C nationals the rights to enter another member state also in the search of work or to rejoin their families. In addition it was stated that failure by a national of a member state to complete the legal formalities on access, movement and residence does not justify expulsion. The case stated a time limit of 3 months should be placed due to the fact that EC legislation on social security allows for the payment of unemployment benefit for up to 3 months in another member state whilst the party is looking for work.   Leading from this case ex parte Antonissen was asked to rule on the legality of English immigration rules that permit the deportation of migrants after 6 months if the do not find employment within the period. The court held that there was “no necessary link” between the right unemployment benefit set out in regulation 1408/71 and the right to stay in a member state for the aim of looking for work meaning that a member state can only deport a migrant only once there is evidence that he was not continuing to seek employment and that he does not have a genuine chance of being employed.

Another right acquired by the worker once he enters the host state is that of equality of treatment. As stated in the regulation 1612/68 “the attainment of the objective of freedom of movement for workers requires in addition to rights of entry and residence, the abolition  of any discrimination based on nationality  between workers of the members states as regards employment, renumeration and other conditions of work and employment. In addition regulation 1612/68 is divided in to several parts.

The first part is eligibility for employment that covers workers rights of access to employment and the second part is equality of treatment in employment that covers the right to equality of treatment during employment and also to social advantages.

The first part, states that any “national of a member state has the right to take up an activity as an employed person, and pursue such activity in the territory of another member state under the same conditions as nationals of that state.”  Indeed a member state cannot covertly or overtly discriminate against non nationals by limiting applications and offers of employment or by enforcing special recruitment procedures or limiting advertising and any other way impeding recruitment of non resident workers. In addition member states may not restrict by number of percentage the number of foreign nationals to be employed in any activity or area. However, while a state may not prescribe special recruitment procedures, limit advertising or otherwise hinder the recruitment of non nationals it may impose conditions relating to linguistic competence as established in Groener  A similar approach to the non discrimination treaty provision of art 39 was taken in the case of spotti v freistaat Bayern where it was held that breaches of art 39 would only be permitted if they were objectively justifiable. It should be noted that the burden of proving a justification for a rule that is discriminatory will be heavy as the rules must be designed to “achieve legitimate ends, and must be both appropriate and necessary to achieve those ends.  In addition the case of Bosman widened the scope of article 39 by stating that the discrimination rules will apply even where the actions are not overtly discriminatory. In fact it is merely necessary for there to be an adverse impact on the individual’s ability to exercise their free movement rights.

 

The second part, on the other hand is concerned with the equality of treatment both   within the work place and out.  Indeed art 7 states “a worker who is a national of a member state may not in the territory of another member state, be treated differently from national workers by reason of his nationality in respect of any conditions of employment, and work, in particular as regards to renumeration , dismissal, and should he become unemployed, re instatement or re employment”. The above article covers direct and indirect discrimination as established in the case of sotgiu v deutcheBundespost.

Another right held by workers is that of having the same social and tax advantages as the host nation nationals. Indeed through European case law the term social advantage has been interpreted widely as illustrated in the case of fiorini v SNCF. In this case it was held that art 7(2) applies to all social and tax advantages irrespective of whether they derive from contract of employment. The broadness given to the term social advantage can be seen through the cases of castelli v ONPTS and the case of Reina that similarly established that social advantage covered not only benefits granted as of right but those granted on a discretionary basis. However the benefit claimed must however constitute a social advantage for the states own nationals. In addition an important limitation is placed on art 7 that states that social or even tax advantages can only be claimed by the worker and not to nationals of member states who migrate in search of work. The last workers right to be considered in this essay is that of the access to training in vocational schools and retraining centres that is an entitlement to workers under art 7(3). Casagrande went on to say that there was not only a right to admittance but also to “general measures to facilitate attendance” which in this case included a grant. This principle was re affirmed in the case of Lair v university of hanover where it was held that a maintenance grant to cover education  is a social advantage under art 7(2).

WORD COUNT:  2000

Bibliography

• Text book on EC law 7th edition, Josephine Steiner & loran woods
• EU law text, cases & materials 3rd edition, Paul Craig & Grainne De Burca
• Immigration Law In the European community, Kluwer
• Free movement of persons in the European community, Handoll, J, chancery 1995
• Nutcases, European law, 2nd edition, Penelope Kent
• www.lexisnexis.co.uk

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