www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace Free Movement of Persons, Free Movement of Workers, Prohibition of Discrimination based on Nationality in Employment and Occupation www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Programme 1.Historical backround, 2.Free movement of persons, the citizenship of the Union, 3.Legal regulation of free movement of persons, 4.Free movement of workers, legal regulation of free movement of workers, 5.Personal scope of application of free movement of workers, 6.Limitations to free movement of workers Zápatí prezentace 2 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace 3 Internal market - one of the objectives of the Union nThe internal market is based on four freedoms: nFreedom of movement of goods nFreedom of movement of workers nFreedom of movement of services nFreedom of movement of capital www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace 4 Historical Backround nAfter establishment of the European Economic Community only persons performing an economic activity were entitled to the freedom of movement of persons. Economic activity nas employee nas self-employed nAt the beginning of 1990s free movement was enlarged to other groups of persons (students, persons after finishing the gainful activity…) n1992 the Treaty of Maastricht - the citizenship of the EU – enlargement to all citizens of the Union and their family members. n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace 5 Legal Regulation of Free Movement of Persons nPrimary law: nTreaty on the Fonctionning of the EU nProhibition of Discrimination and Citizenship of the Union - Article 18 (former Article 12 of the Treaty Establishing the European Community) lays down prohibition of discrimination based on nationality. nArticle 20 (former Article 17) - free movement for citizens of the Union nSecondary law - Directive of the European Parliament and of the Council 2004/38 of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside within the territory of the Member States, replaced legislation from 1960s n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace 6 Personal Scope of Application of Freedom of Movement for Persons nCitizens of the Union nTheir family members 1.Spouse 2.The partner with whom the Union citizen has contracted a registered partnership on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnership as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State 3.The direct descendants who are under the age of 21 or are dependants and those of the spouse or partner 4.The dependant direct relatives in the ascending line and those of the spouse and partner n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace 7 Free movement of persons includes: nRight to leave the territory of the Member State nRight to entry on the territory of another Member State nRight to move within the territory of another Member State nRight to stay within the territory of another Member State www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Right to stay on the territory of another Member State nA period up to three months – without any conditions or formalities (only valid identity card or valid passport) nThe right to residence for a period longer than three months applies to: nWorkers or self-employed nPersons who have sufficient resource for themselves and their families, nStudents nFamily member accompanying or joining a Union citizen nEU nationals of their family members shall not become a burden for a system of social assistance of the host Member State n Zápatí prezentace 8 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Free Movement of Workers nPrimary law – art. 45 of the Treaty on Functioning of the EU nSecondary Law: nRegulation (EU) 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, replaced Regulation of the Council 1612/68 of 15 October 1968 of free movement of workers within the Community nDirective 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers Zápatí prezentace 9 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace 10 Article 45 n1. Freedom of movement for workers shall be secured within the Union. n2. 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 n3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: n (a) to accept offers of employment actually made; n (b) to move freely within the territory of Member States for this purpose; n (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; n (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 regulations to be drawn up by the Commission. n4. The provisions of this Article shall not apply to employment in the public service. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Notion of worker for the purpose of free movement of workers nThe term worker is not defined by primary and secondary legislation nInterpretation by the ECJ, case Deborah Lawrie-Blum v Land Baden-Württemberg (C – 66/85), 3 characteristic features of worker: n 1. provision of services for certain period of time, n 2. under direction of another person, n 3. remuneration (wage, salary), nThe gainful activity must be effective and genuine - case Bettray v Staatssecretaris van Justitie (C – 344/87) Zápatí prezentace 11 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Zápatí prezentace 12 Limitations to Free Movement of persons nPPublic Policy nPublic Security nPublic Health nLimitations to free movement of workers nPublic Policy nPublic Security nPublic Health nEmployment in public service nLimitation for citizens of new Member States – laid down by Treaties on Accession www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Protection of Public Security and Public Order - Restriction on the right of entry or the right to residence - These grounds shall not be used for economic goals - Principle of proportionality - Based exclusively on the personal conudct of an individual concerned - Previous criminal convictions shall not in themsleves consitute grounds for taking these measures Zápatí prezentace 13 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Protection of Public Health nRestriction on the right of entry or the right to residence nThese grounds shall not be used for economic goals nOnly diseases with epidemic potential as defined by instruments of WHO or other infectious diseases or contagious parasitic diseases if measures are applied to nationals of the host Member State nDiseases occurying after a period of three months from the date of arrival shall not constitute a reason for expulsion from the territory of host Member State n Zápatí prezentace 14 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Employment in Public Service nA Member State may reserve posts to own nationals nApplies only to workers nMay be applied only with respect to access to employment not after the establishment of employment relationship nThe ECJ interprets this exception to free movement of workers very restrictively nPosts – direct or indirect participation in the exercise of public power n Zápatí prezentace 15 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Accession of New Member Statess nTreaties on accession of new Member States – source of EU primary law nPurpose of limitation – protection of labour market of the Members States nMember States have no obligation to open their labour markets in the moment of accession of new Member State (e. g. Austria and Germany opened their labour markets to the Czech national in 2011) nLimitations may be adopted later (a. g. Spain adopted limitations with respect to Rumanian nationals in 2011) Zápatí prezentace 16