- Free movement of goods and workers
- The free movement of capital and payments
- Freedom of establishment and the freedom to provide services
- Competition policy,
- Economic and monetary policy,
- Agricultural policy,
- Transport policy, environmental policy,
- Research and technology and
- Industrial policy
The Maastricht treaty brought the areas of justice and police co-operation- including the problems of asylum and immigration within the European Unions.
The treaty of Amsterdam went further: (17th June 1997)
It had four main objectives:
- To place employment and citizens rights at the heart of the union;
- To strengthen security and remove any remaining obstacles to freedom of movement;
- To give Europe a stronger voice in world matters;
- To make the Unions institutions more efficient with a view to enlargement.
However this policy does not only have economic implications. There are also social consequences. The Preamble of regulation 1612/68 states:
“the freedom of movement constitutes a fundamental right of workers and there families; mobility of labour within the community must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economy of the member states”.
The freedom of movement of workers is mainly based on the principle of non-discrimination on the ground of nationality, while the freedom of non-wage earners to move within the Community is, generally speaking, expressed by the rights of establishment and the right to provide service. For the non-economically active three Directives were adopted in 1990. directive 90/364 gives rights to persons of independent means and Directive 90/365 covers retired persons who do not satisfy Directive 1251/70. in addition there id Directive 90/366 which provides rights to students undertaking a vocational course at a university in another Member State whereby they can reside in the host Member Sate for the duration of their course. This Directive was later annulled by the Court (case 295/90 European Parliament v Council) on the grounds that the legal base claimed by the Council was wrong so that the Parliament was merely consulted and the co-operation procedure was not utilised. However, the Directive remained in force until it was replaced by Directive 93/96. For all these directives there is one common factor, which is that the individual who is seeking to enforce a right under them is not economically dependant upon the benefits system of the host Member State.
A new Part to the EC Treaty on ‘Citizenship of the Union’ was created by the TEU and confirmed by the Treaty of Amsterdam. Article 17 established Citizenship of the Union and Art 18 EC has been included whereby all citizens of the union will be entitled to move and reside freely within the territory of all the Members State. This right can be restricted by Community law limitations already in existence and future implementing measures. That this right did not translate into enforceable rights for the citizens is demonstrated by the case of Florius Wijsenbeek (case c-378/97). On re-entry to Holland, a Dutch national refused to show his passport, referring instead to the EC Treaty provisions, Arts 7a and 8a (now 14 and 18), on the free movement of EU citizens as removing the necessity to do so. He was prosecuted and ordered either to pay a small fine or go to prison for one day. He appealed and a reference was made to the Court of Justice. The Court held that because Art 7a (now 14) provides only that the Council may adopt provisions to facilitate the objectives of internal marker, the provisions are not directly effective. The Court observed that at the time of the events in question, there were no common rules on immigration or border controls, therefore even if an unconditional right to move was established, the Members States still retain the right to carry out identity checks and to determine whether the person entering the State is a person entitled to do so. Furthermore, Member States have the right to impose penalties for breach of the obligation to be identified, provided that such penalties are proportionate and comparable to penalties for similar national infringements. The Court considered that imprisonment would create an obstacle to free movement of persons but that the fine of NLG 65 appeared to be acceptable. It remains to be seen how this will affect the rights of entry and residence of those seeking work or establishment. Furthermore a new Title on Visas, Asylum, Immigration and other policies relating to Free Movement of Persons has been incorporated into the Treaty (Arts 61-69). Effectively it incorporates the Schengen Agreement into the EC Treaty. The Agreement was originally signed by Five Member States in 1990 and now extends to all except UK, Ireland and Denmark. This will seek progressively to remove all internal border controls and barriers to free movement for Union Citizens regardless of their economic status.
The Council issued Directive 68/360 on the ambition of restrictions on movements and residence for workers of the Members State and their families. Both Art.39 EC (ex 48 EC) and the Directive have been held by the ECJ to be directly effective. Thus they give individuals rights which the courts in the Members States must protect and enforce.
Art.39(3) EC (ex 48(3)EC) envisaged the free movement of workers for pursuit of accepting employment but makes no mention of a right to move freely in search of employment. Directive 68/360 makes no reference to this point either, but it has been generously interpreted by the Court. In Case 48/75 Procureur du roi v Royer the Court held that Art.3 of the Directive included the right of workers to enter the territory of a Member State and reside their for the purpose intended by the Treaty, in particular to look for or pursue an activity as an employed person. In the Levin case this right was limited to three months on the proviso that the individual could support themselves without recourse to public assistance. Also in Case 292/89 R v Immigration Appeal Tribunal the Court held that immigrants seeking employment had the right to enter another Member State and stay there for a sufficient period of time to find out about the job marker opportunities and to find a job. In the UK six months is allowed for a “worker” to find a job although generally at lease three months are given by Member States.
A worker's right to a residence permit is implied once he has secured a job but if he finds no job or if he loses it voluntarily he cannot expect to be entitled to a residence permit. Thus a British subject continuously unemployed was not entitled to a renewal of his residence permit in the Netherlands-Williams v Dutch Secretary of state (1977).
The right of residence means the right to stay indefinitely in the host country. A worker cannot be expelled except in cases justifiable under derogation from the freedom of movement. The residence permit is merely proof of the right granted by the Treaty which exists independently in the document.
As a corollary to the freedom of movement protected by Regulation 1612/68 and Directive 68/360, Regulation 1251/70 gives the worker the right to remain in the territory of a Member State after having been employed there. This right applies to the retired and incapacitated worker. A worker acquires a right of residence on retirement provided that he has reached the age laid down on the member state for entitlement to an old age pension, has resided continuously in that member state for more than three years the last year of which he has been employed. If the incapacity of a worker is due to an industrial accident or disease entitling him to the payment of a pension, he can remain in the Member State regardless of the length of him previous residence. If the incapacity did not arise from employment he is entitled to remain if he has resided in the Member State for at lease two years.
The limitations are specified in Art.39(3) are on the grounds of Public Policy, public security or public health. National authorities applying these actions. They cannot impose restrictions upon a Community national unless "his presence or conduct constitutes a genuine and sufficiently serious threat to public policy" (Roland Rutili v Ministre de l'interieur). This cannot be applied to a group, but only to individual members of the group (Van Duyn v Home Office). Directive 64/221 states that it must be "personal conduct". On the basis of the UK Government's view of the Church of Scientology, the court held in Van Duyn that the UK's action was justified. The question was asked "was it discriminatory in that a UK national could have taken up the post Van Duyn had accepted?" The court response was:
'a Member State for reasons of public policy, can where it deems necessary, refuse a national of another Member State the benefit of the principle of freedom of movement of workers in a case where such a national proposes to take up a particular offer of employment even though the Member State does not place a similar restriction on its own nationals".
In this case a Dutch woman obtained a position as secretary with the Church of Scientology in the UK, but was refused entry by the Home Office on the ground that public policy declared the church to be socially harmful. Ms Van Duyn claimed that the refusal was not made on the ground of her personal conduct but on the conduct of the group. The Court of justice held that personal conduct must be an act or omission to act on the part of the person concerned and must be voluntary. It need not, however, be illegal or criminal in order to offend public policy. The court further held that present association, reflecting participation in the activities and identification with the aims of a group, may be considered a voluntary act and could therefore come within the definition of conduct.
it follows from the case law of the Court that Member States have not relinquished all control over Community nationals as regulations governing the registration of aliens and criminal sanctions in this respect are compatible with their Treaty obligations unless they are so rigorous as to be tantamount to a rejection of the freedom of movement over and above the cases covered by the derogation provisions.
Public Policy provides a Member Sate with discretion but only within the limits allowed for by the Treaty, which are narrowly interpreted by the ECJ. Criminal conviction does not automatically justify deportation (Bonsignore v Stadt Koln). In R v Bouchereau a conviction for drug offences was regarded as a sufficient ground for deportation.
