The Free Movement of People - Essay Example

? Law Law Introduction: It is a fact that the free movement of people is considered one of the most elemental legal provisions and frameworks of the European Union (EU). The economic and civil expedience underpins the sacrosanct nature of this freedom, so that it is impossible to sidestep it. Particularly, whereas free movement is integral to the realization of the market, it also provides people and their families to exercise the right to mobility. The flipside of this provision has been its penchant for predisposing member states to the inability to control entry and residence within their territory. Eventually, this has led to the member states’ attempts to minimize stemming the burden that unbridled movement of persons place on them. The Regulation EEC 1612/68 has already been applied to more than 2 million EU citizens exercising this right. In 1992, the Treaty of Maastricht created the Community model (amended Treaty of Rome), extended responsibility, and focused more on Community integration by exercising such rules. Originally, members of Community defined it as ‘economic activity’. However, this requirement has been abolished and under the new Directives, the nationals of the EU member’s state are classified as “Union citizens”1. Needless to say, the free movement of workers is secured2. This directly affects the EU member states by proposing and ratifying laws such as secondary law, Regulation (EEC) 1612/68, and Directives 2004/38. This essay will demonstrate and discuss the significance of Article 45, and potential issues such as (a) right to freedom of movement for job-seeker people; (b) right to freedom of movement after a failed marriage; (c) right to freedom of movement for non-married partners; (d) right to received allowances in another member states. Definition of workers: The definition of a ‘worker’ has a wider meaning as defined by the Community. However, it is not defined by the member of states3. For example, key case Lawrie-Brum4 concluded that a trainee teacher is a worker. It expanded the definition of a worker to a person who “for a certain period performs services for and under the direction of another person and in return receives remuneration”. This has given a broader interpretation of a worker, for example, if somebody works in a religious community he or she is still considered a worker5. This case law added further categories (i.e part-time chamber pupil6, part-time music teachers7, pacer in cycling race8, Professional footballer9); who were also regarded as workers because they engaged in an economic activity. The ECJ did not allow everyone because it restricts some categories under this broad worker definition. This is seen in the case of Bettray10. He claimed to be a worker while on drug rehabilitation programme. However, the ECJ declined to classify him as a worker because he was not engaged in any economic activity. However, scholars have heavily criticized it. 1.1 Job seekers: Article 45 (ex Article 39 TEC) gives the European Union citizens the right of movement from one union member nation to another in search of a job. However, Article 45 (3) subjects those rights to limitations because the state can derogate a person on the basis of the “public policy, public security, and public health”. Under the UK law, Procureur, 11an individual can be lawfully deported because he or she did not secure work within a limited time. However, the Court of Justice stopped a lawful deportation of an Italian job seeker12 by applying Article 45. Conversely, Aritcle14 (4) (b) of Directives 2007/38 allows citizens to enter into member states to seek for employment if they have genuine chances of getting a job. Nonetheless, the job seekers are not entitled to full benefits. Arguably, Antonissen13 and Collins14 confirmed this where the ECJ declined to give social security benefit because they were unsuccessful in looking for a job. In essence, this illustrates that citizens have the right to enter and reside in host country but, with some limits. 1.2 Family Directive 2004/38: EU has tried to resolve the problem that tries to harmonize the dynamics of free movement of persons within the Union. Directives 2004/38 gives the Union member state citizens the right to move from one state to another with his or her spouse15, registered partners16, children17and grandparents whom they have ‘durable relationship’ with. In order to stay, they are entitled for full beneficiaries’ status18and equal treatment19. In addition, the EU legislation prohibits discrimination based on nationality. This not only protects Union citizens from discrimination but also prevents non-EU nationals20 from discrimination. Divorce and separation: Before 2004, secondary legislation did not secure this right to divorced and separated partner Union citizens. Directives 2004/38 gives right to stay with their family even when separated. This is well demonstrated by Ditta21, a Senegalese married to a French national and lived in Germany but separated with her husband. She could not be deported because the ECJ allowed her to reside22 on continuing family link. In contrast, an Indian national did not gain entrance from the UK Boarder Agency because he separated with his German wife. Notably, he could not stay in host country because he was non-EU- national. As a result, the Court expanded family rights in Article 13 Directives 2004/38 and allowed non-EU national worker to stay in host country after separation. Despite the area being fairly restricted by four conditions laid down in Article 13 of Directive 2004/3823. 1.3 Non- married partner This is demonstrated by Ms Reed, a Dutch national, who had a stable relationship with her unregistered English partner and lived in Holland. She claimed for social benefit under Article 10 of Regulation No 1612/68 and won her case under Article 7(2) of Regulation because Dutch law allowed non-married partner to constitute social advantage rights. In this case, ECJ took a generous approach by ignoring the legislation ruling over Regulation1612/68 of Article 10, which states that an unmarried partner could not claim for same benefits as a ‘spouse’. 1.4 Non-discrimination rules: The EU legislation prohibits indirect and direct discrimination based on nationality. For instance, Article 18 TFEU addresses non-discrimination and citizenship within Union. In addition, Article 24(1) of Directive 2004/38 calls for equal treatment rights. This provision gives the worker’s family equal benefit in member states. Moreover, Regualtion492/2011 secures rights in specific areas such as rights of employment, housing, trade union rights and tax/social rights. In other areas there are also case laws that help reinforce European Union Laws that seek to modify movement. For example, there was the Comm v France (French Merchant Seamen)24, which makes specifications of non-discrimination on the basis of nationality. This case law was held by the European Court and held that there is not to be any form of direct discrimination on the grounds of origin25. In the case of Minister Public v Even the court specified that there should be limitation on those who access public resources, in accordance with their relationship with the European Union citizens. Ministere Public v Even rules that there should be the extension of benefits to the worker’s family, because by extending such benefits, the worker will also be benefiting, indirectly. While indirect discrimination was not allowed in the case of Ugliola, an Italian national who had offered national services in Germany and claimed for a pension on that basis and Germany refused to recognize his services. The ECJ held that in-direct discrimination on the ground of nationality within Union was not allowed. Under the rule exclusion of workers subjected in Article 45(3) of Directive 2004/38, a member state has the right to restrict free movement of people on the grounds of “public policy, public security, and public health”. For example, Van Duyn a Dutch national Scientologist wanted enter into UK but was not allowed on the basis of public policy, and went to court. The Court of justice held that this was an uninformed decision and decided against UK. This was heavily criticized by scholars because UK gives too much discretion power to the member states. In conclusion: It is true to remember that the Maastricht Treaty that integrates the European Community acknowledges the power of EU member states to exercise discretion26 concerning extending the right to free movement of citizens. This reflects on whether there is convergence between directives and Commission's decisions and the decisions taken by judges at the ECJ. However, a fundamental step taken on free movement of workers subjected Regulation NO 1612/68 to decreased bureaucratic formalities for Union citizens. Nonetheless, the general provision Directive 2004/38 removes obstacles of free movement to workers by giving them the right to enter and stay with their families without prejudice in member states. The ECJ seems to be a successfully resolved issue on case-by-case basis. Nonetheless, questions on the Community on whether there is a trend toward greater or lesser integration within Union still linger. This problem was portrayed when the Court of Justice declined jobseekers27 the right to social security benefits because they could not get employment. In essence, additional legislation could remove further barriers of movement, for example, pensions and students. Read More