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Published: Fri, 02 Feb 2018
EU Law On Free Movement Of Workers
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EU Migrant workers rights under the free movement provisions are now so extensive that they enjoy an enhanced status, even when compared to national workers who do not move.
One of the four fundamental freedoms of EU Law is the free movement of persons. The most securely protected group of persons under Community law is employed persons, or workers. Under Article 39(1) EC ‘Freedom of movement of workers shall be secured within the Community.’ Under Article 39(2) this must ensure, ‘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.’ Limitations on this right must be justified under Article 39(3) on grounds of ‘public policy, public security or public health.’ In the cases of Walrave and Koch  and Bosman  the European Court of Justice (ECJ) held that Article 39 was of horizontal as well as vertical direct effect where the employer had powers to regulate conditions. Angonese  went further, granting the provision direct effect against all employers.
In the case of Masgio v Bundesknappshaft  and Bosman  the ECJ found a right of workers to leave their home State to work in other Member States. These rights were codified in a number of Directives that were replaced with Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.  Under the case of Watson and Belmann  the right to move to another Member State as a migrant worker is not dependent on secondary legislation and cannot be made subject to the requirements of obtaining a workers permit as it is derived directly from the Treaty. Employment rights similarly derive from the Treaty as the case of Innovative Technology  states but Regulation 1612/68  provides specific provisions in that regard.
The goal of Regulation 1612/68 when it was passed back in 1968 was to allow workers to move freely with their families and integrate quickly in the new State. The Regulation has two Titles, with Title I dealing with a right to access a job in a non-discriminatory manner, while Title II deals with the right to perform the job in a non-discriminatory manner. Under Article 1 all Member State nationals have, ‘the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State, enjoying the same priority as a national.’ Under Article 2, the worker can conclude contracts of employment. Article 3(1) special requirements for workers from other Member States, such as special recruiting procedures, restricted advertising, or imposing additional requirements are prohibited.
The prohibition against discrimination applies equally to direct and indirect forms of discrimination. Direct discrimination was at issue in Commission v Italy  in which private security work was being offered only to Italian security firms employing Italian nationals. Other directly discriminating provisions are targeted by Article 4(1) of the Directive, which prohibits the placing of numerical or percentage limits on workers from other Member States by employers. In Commission v France  a rule requiring three out of every four crew members on French merchant ships to be French was held to contravene Article 4(1).
Indirect discrimination is also prohibited unless, as was shown in the case of Kalliope Schoning,  they can be objectively justified. Article 3(1) targets practices which, ‘though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from employment offered.’ Examples include residence requirements or periods of service within the state. In Collins  for example, a UK rule prohibiting a foreign national from claiming jobseeker’s allowance was held to be prima facie discriminatory and had to be proportionate and justified, a decision left to the national court.
Other more complicated measures, which will often not be intended as discriminatory, are also caught by the legislation. For example, in Kobler,  an Austrian practice of rewarding university professors who had served fifteen years but did not recognize service in other EU universities was held to be indirectly discriminatory and, ‘likely to impede freedom of movement for workers because, first, the regime operated to the detriment of migrant workers who were nationals of other Member States and, secondly, it deterred freedom of movement for workers established in Austria by discouraging them from leaving the country to work in other Member States.’
7(2) of Regulation 1612/68 migrant workers are entitled to all the same social and tax benefits as national workers. Often, tax rules that treat residents and non-residents differently will be targeted by this provision. While cases such as Biehl  show that residence requirements can be discriminatory, it often the case that residents and non-residents have objectively different circumstances and therefore, it will be reasonable and also lawful to treat them differently. Residence is generally regarded as the basis for both paying tax and collecting tax allowances and other benefits so in many cases, it will be justifiable to treat residents and non-residents differently when it comes to tax and benefits. However, in all cases, policy makers will have to ensure that there is a sound basis for doing so. This is because if the situation for the resident and non-resident is not objectively different, then there will be no justification for any difference in treatment. In the Schumacker  case the worker lived in Belgium with his family but performed all of his work and received all of his income in Germany. While German income tax and benefits were calculated differently than if he had been a resident, it was held that because he was in objectively the same situation as a person resident in Germany, it was not permissible to treat him differently in that situation.
Under Article 7(2) all social advantages must be provided equally and on a non-discriminatory basis. In the case of Even  social advantages were defined as all benefits, ‘which… are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community.’ Social advantages includes benefits that are granted as of right and on a discretionary basis to workers or residents, as well as those granted after the work has been terminated. Not only benefits that facilitate mobility are included but also benefits that can facilitate the integration of migrant workers into the community of the new Member State.  The Even judgment applies not only to benefits that are ordinarily reserved for workers, but to all advantages offered to residents on the national territory. This means that migrant workers as well as their families will enjoy all the chances in life and social benefits that nationals enjoy. As the ECJ stated in ONEM,  this was required under Article 7(2) as that provision requires not only that workers are able to find work but also that they and their families are encouraged to do so and that ‘the best possible conditions for the integration of the Community worker’s family in the society of the host Member State’ is ensured to every migrant worker. This trend is also contained in Article 24(1) of Directive 2004/38 which states that the social benefits secured for workers ‘shall be extended to family members who are non-nationals of a Member State and who have the right of residence or permanent residence.’ Equal treatment with respect to vocational training and university access is also guaranteed as cases such as Bernini,  and Commission v Austria  demonstrate.
The issue that must be addressed in light of all these legally protected rights under EU law is whether migrant workers enjoy so much protection that they are even better off than national workers who remain in their home state? It is submitted here that this is not the case. This is because all of the rights guaranteed to migrant workers are framed in the language of equal treatment. Migrant workers are entitled to nothing but equal treatment under EU law. There are no absolute rights that they enjoy in relation to employment, social advantages or vocational training. Migrant workers are only entitled to be treated in the same manner as nationals, and their families are only entitled to be treated in the same manner as other residents of the host state.
Where migrant workers might be described as better off, is when compared to other workers in their state of origin. If the state that the worker arrives in has better labour standards and standards of living than the Member State the worker left, then the worker will be entitled to enjoy a higher standard of living. However, their position is not better off than other workers in the host state to which they have moved.
This question asks us to address a number of issues related to chicken sales. The first part of the question relates to a measure adopted by Hungary prohibiting the sale of chickens from Germany. This measure was taken in response to suspected outbreaks of avian diseases on German farms.
While Articles 28 prohibits quantitative restrictions on imports of goods within the EU and Article 29 prohibits the same restrictions for exports, Article 30 contains a number of derogations that are relevant when looking at the action which has been taken by Hungary. As Article 30 states, ‘the provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial or commercial property.’
The ECJ, viewing Article 30 as potentially creating scope for abuse has interpreted this provision strictly, and in the Irish Souvenirs case  it held that the list of derogations in Article 30 was exhaustive and no new categories would be permitted. Considerations such as consumer protection or commercial fairness would not therefore justify discriminatory measures.
Another way in which the ECJ has sought to prevent Member States from abusing Article 30 has been by preventing its use in situations where the Member State has in fact been pursuing some ulterior economic objective. In Commission v Italy,  this rule was set out while in an earlier case between the Commission and the Italian Government,  the ECJ held that the fact that the Italian pig industry was showing signs of systemic failure did not justify protective measures. In the present circumstances this is highly relevant as it means that there can be no ulterior motive for Hungary’s banning of German chicken, other than the purpose of protecting Hungarian chickens, other livestock, humans or human health, or commercial property that could conceivably be threatened by the avian diseases at issue. The burden will be on the Hungarian authorities to show that the German chickens would jeopardize one of the permitted grounds for imposing restrictions and this would be done through bringing scientific data and expert reports on the issue before the Council. This would be necessary in the event that the German authorities made an appeal against the Hungarian measures.
The protection of health and life of humans and animals is the most frequently invoked of the Article 30 derogations, and while each Member State is free to determine the standard of health protection that it desires for its nationals, in the absence of Community harmonization measures, and subject to the climate, diet, living standards and normal state of health of citizens, the ECJ does police restrictions invoked under this exception. The case of Openbaar  demonstrated the degree to which Member States would have to support any claim that the health of citizens or animals is under threat while Commission v United Kingdom  shows that the measure has to be part of a broader and well conceived health strategy for the nation and which requires the imposition of the restriction in the case.
An example of Article 30 being invoked for the protection of animal lives is the case of Bluhme  in which the court held that ‘measures to preserve an indivenous animal population with distinct characteristics contributed to the maintenance of biodiversity,’ and was therefore justified.
It appears therefore as if the Hungarian government have good grounds for imposing their ban on German chickens. Assuming the Hungarian government can show scientifically that the avian diseases are a threat to human health or life, and that their ban is part of a thought out public health strategy, or alternatively, that the diseases threaten animal populations, probably by showing that the diseases are communicable or contagious, then it is likely that their ban is capable of falling within Article 30.
However, it is also a requirement under Article 30 that any derogations made under it do not ‘constitute a menas of arbitray discrimination or a disguised restriction on trade between Member States.’ In Henn and Darby  the issue at stake was a UK prohibition on the importation of certain pornographic materials. While the plaintiffs could show certain inconsistencies in the UK laws, the ECJ held that as a whole, the true purpose of the rules subject to dispute was to protect morals and was not a disguised restriction on trade, and the rules were therefore justifiable.
A more controversial use of the provision arose in the Turkeys case  in which the UK introduced a new slaughter policy to deal with a disease that infected turkeys known as Newcastle disease. The new policy was in place of a previous vaccination policy that was held to be less effective by evidence brought forward by experts in support of the UK approach. In support of the slaughter policy, the UK banned turkey imports from all Member States except Denmark and Ireland, on the ground that since there would no longer be vaccinations in the UK, imports of possibly effected animals would threaten the British stock. However, the ECJ was willing to look behind the UK policy and found that the true reason for the shift in policy was not to better combat Newcastle disease at all, but to provide an excuse for blocking turkey imports from France in particular, which had greatly increased sales of turkeys in the UK. The timing of the change in policy was also planned to coincide with the 1981 Christmas period. Also, because of a lack of convincing scientific study or discussion surrounding the policy shift, the ECJ found that it could not ‘form part of a seriously considered health policy.’ Also, because there were less economically damaging methods of dealing with the threat of Newcastle disease, the policy also failed a test of proportionality.
In conclusion therefore, if the Hungarian measures are to be upheld, it will have to be shown that they are truly targeted at protecting health and are not actually part of an economic strategy. It will also have to be shown that the measures are part of a well thought out health policy and that they are proportionate.
The second part of the question asks us to deal with some retaliatory measures implemented by Germany.
This measure requires all chickens imported into Germany to undergo a health inspection. It is arguable that such a requirement would improve the health of the chicken stock or reduce the risk of diseases spreading. However, as the Turkey case demonstrated, there is virtually no chance that a measure adopted in the interest of health protection of animals would pass ECJ scrutiny unless it made equally stringent requirements on domestic producers. It appears as if the German measures have been adopted solely against imported chickens and that domestically produced chickens are not subject to the same health checks. Therefore, it is unlikely that the motive of the measure is anything but economic. Also, the timing of the measure, coming as it does on the tail of the Hungarian prohibition on German chickens would also suggest that the measure was retaliatory in nature.
The second measure bans advertising of chicken on German media. There is nothing to tell us if this measure is targeted solely at imported chickens so it is likely that the advertising ban applies equally to domestically produced and imported chickens. The difficulty that the German authorities are likely to come up against in respect of this measure is that it could be construed as a measure having an equivalent effect to a quantitative restriction. In the case of Geddo v Ento Nationale Risi  the ECJ defined a quantitative restriction as’ measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit.’ A measure preventing the advertising of chickens would have the effect of reducing chicken sales and therefore imports, particularly if domestically produced chickens are seen as defective in current market circumstances. Therefore, the German measure is likely to be seen as a measure having an equivalent effect to a quantitative restriction. It is difficult to see on what grounds the German authorities would seek to justify the measure and therefore, it is likely that the ECJ would strike down the measure as being in breach of Article 28 were it to be challenged by the Commission or another Member State, or indeed a private party.
The final requirement is that all chicken-based products sold in German be contained in clear, rectangular containers which display the place of origin of the farm. There are legitimate reasons why customers would want to know the origin of agricultural produce and requiring them to be clearly labeled would probably not be problematic, so long as there was no evidence that the German authorities had some ulterior motive for bringing in the requirement. It would also be necessary for the requirement to apply equally to German as well as imported chicken based products. If there was evidence that the authorities were trying to encourage some sort of backlash against Hungarian farmed chickens the measure would be struck down. It is also difficult to see on what grounds the German authorities would justify the requirement that the chicken product be packaged in a clear, plastic, rectangular container as this would be unlikely to effect the product. Therefore, this part of the requirement might be struck down as ineffective and disproportionate.
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