LIANNA MEELKER-AMIRKHANYAN

One of the virtues of the EU /European Union/ is the FREE MOVEMENT OF PEOPLE/WORKERS besides the free movement of the goods. When you live in one of the Member State, you are free to move to work within 27 countries.

Free movement has its definitions and certain rules, which I descried in the article very briefly.

Free movement of Workers definition: (Lawrie – Blum, 1986)

  • During a period of time
  • Perform services under the direction of another
  • In return of remuneration

The European Court decided that:

During a certain period of time, the form of services and the direction in return for remuneration, which falls into two areas:

  1. Economic Aspects of Workers
  2. Formal Aspects of Workers
  • Economic aspects of workers
  • Steymann (1986)
  • Payment doesn’t have to be money
  • Kemf (1986)
  • Payment doesn’t have to be to live on

Meaning: If you work in a job where you get food and stay, it is still falling under the EU Law as a worker.

In Kempt case, it is explained that the payment doesn’t have to be enough to live on, and in that case the workers still relays on a benefit from the state, to be able to live in the country.

  • Formal Aspect of Worker
  • Levin (1982)

Includes part-time work

  • Hoekstra (1964)
  • Someone who recently lost their job and were looking another job.

It can be part-time work, as it doesn’t state that it has to be a full-time job.

It can be that the person is looking for another job.

Here Short Explanations by Articles how this looks:

Main Article 45 (1) is about

  • Securing Free Movement for workers in the EU

Meaning: If the workers want to settle in another Member State to work, they have to have right of free movement in the EU.

Article 45 (2)

  • Don’t discriminate against foreign workers
  • Collins v SoS for work and Pensions (2004)

Meaning: If foreigner lived and worked in the country, they have the same rights and the same rules of the pension applies.

Article 45 (3)

  • Right to accept offers of employment
  • Right to move freely within the Member State
  • Right to remain in the Member State for a job
  • Right to remain after having been employed
  • Right to enter / level
  • Directive 2004/38
  • Right to reside
  • Art. 6 of directive 2004/38
  • Antonissen (1991)

Article 6 is when you arrive to the Country, even if you don’t have a job, you have right to reside there for 3 months.

After 3 months, things are changed.

You have to show that you are searching job, or you are invited already for the interview, or you are registered as an entrepreneur to start to work on you. If you don’t have any job and haven’t any approval you might get job, you will be invited to leave the country.

  • Right to stay after losing the job
  • Illness
  • Involuntary unemployment
  • Vocational training
  • Right to permanent residence after 5 years
  • Art. 16 (1) of directive (2004/38)

If you liked the Member State country and settled there for 5 years, you can apply for permanent residence in 5 years and you will be considered as a national of that Member State country.

            Article 45 (3)

  • Public Policy

A very famous case from van Duyn, a Dutch scientologist, who wanted to settle in the UK.

  • Van Duyn v Home Office (1974)
  • Art. 27 (2) of directive 2004 /38

Home Office is about when that MES can choose on the base of their culture what is in the interest of public policy and what isn’t.

UK refused Van Duyn, as they considered scientologists are weird and they don’t want them in their country. The European Court agreed with the UK.

Art. 27 says that if the person is not a threat, can’t be refused to settle in MES.

This was considered quite liberal approach to the public policy.

  • Public security
  • R v Bouchereau (1977)

Bouchereau was a threat for the UK. He wanted to settle in the UK from France, but was sent back to France, as he recently before moving to the UK committed crime, therefore was considered as a threat for the public security.

This is called a criminal case. He committed a crime.

After all the EU Court came with 2 identified key factors:

  • Previous criminal conviction

Meaning: The case can’t be only looked from the point of the seriousness, but

How long ago it took place.

Let’s say it happened 30-50 years ago. In such case the person can’t be considered a s a threat.

  • Recently committed crime

Meaning: If someone committed crime just recently, will be banned from settling in the other MES, on the security ground.

  • Public Health
  • Contagious / epidemic diseases

In case of heavy infection, like recent Covid-19, limitations will be placed.

But there is no discrimination between people having HIV disease.

Article 45 (4) PUBLIC SECTOR

  • Public sector jobs like army, defence, police and relevant job related to National Security are excluded from free movement of the workers.

Why? Having people from other countries is not right for fulfilling these kinds of state and local issues related roles.

Free movement of workers
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The opinions on this blog are of the authors themselves and do not necessarily represent the opinions or policies of ELfR.


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