Arguably,
the most controversial issue that was one of the pillars of the Brexit campaign
has to do with benefits. Is it that easy to move to another Member State and
claim them?
Because
of the relevance of this point and its very controversial nature, in particular
in light of Brexit, the post today will extend the analysis to European Union treaty
law, secondary legislation and ECJ case law.
Art.45 (2) TFEU:
Freedom of movement entails abolition of discrimination based on nationality
between workers of a Member State as regards employment, remuneration and other
conditions of work and employment.
Regulation 1612/68 art. 1 (1):
Any national of a Member State shall have the right to take up an activity as
an employed person, and to pursue such activity, within the territory of
another Member State in accordance with the legal and administrative provisions
governing the employment of nationals of that State.
Regulation 1612/68 art. 1 guarantees
to European Union migrant workers right to take up available employment and pursue
it in territory of host Member State under same conditions as nationals of that
Member State.
Regulation 1612/68 art. 3 (1):
Member State will not take measures:
§ limiting
application for and offers of employment by non-nationals (e.g. rules stating only nationals can apply
for position or limiting advertising of certain positions to nationals), or
§ limiting
right of non-nationals to take up & pursue employment (e.g. rules providing particular kind of
work, e.g. security, can only be carried out by national security firms
employing nationals or requiring non-nationals to be registered with local
jobcentre), or
§ subjecting
non-nationals to conditions not applicable to nationals (e.g. recruitment procedure subjecting non-national more than national
– tests, references), or
§ where,
through applicable irrespective of nationality, their exclusive or principal
effect is to keep nationals of other M.S. away from employment offered (e.g. rules requiring period of service or
residence in host Member State before being eligible for recruitment in
particular profession).
Regulation 1612/68 art. 3 (1) provides nationals provisions & practices which
limit right to seek or to pursue employment or which impose conditions not
applicable to nationals on migrant E.U. workers are inapplicable.
Any provisions which discriminate against foreign
nationals or hinder foreign nationals in obtaining work are unlawful.
Regulation 1612/68 art. 3 (2): Measures include those:
§ prescribing
special recruitment procedure for foreign nationals;
§ limiting
or restricting advertising or vacancies in press or other medium;
§ subjecting
eligibility for employment of non-nationals to conditions of registration with
employment offices.
Regulation 1612/68 art.3 (1) allows,
however, for imposition of “conditions relating to linguistic knowledge
required by reason of the nature of the post to be filled.”
Groener (379/87) – Requirement
imposed by Irish government full-time teachers in Ireland be able to speak
Gaelic. Prima facie indirectly discriminatory because Irish nationals more
likely to fulfil condition than non-nationals. Advantage given to nationals.
Dutch national working in Ireland rejected for full-time art teaching post
because failed to pass oral test in Gaelic.
Held: 1) Irish language requirement could fall
within scope of Regulation 1612/68 art.3 (1) given Irish government’s
policy to promote use of Gaelic, as official language, to express national
identity & maintain Irish culture. 2) Because education was important for
implementation of such policy, requirement for teachers to have knowledge of
Gaelic compatible with Regulation 1612/68 art.3 (1) provided level of
knowledge required not disproportionate to objective pursued.
Regulation 1612/68 art.7 (1):
Non-discrimination principle extends to conditions of employment, in particular
pay, dismissal and, in case of unemployment, reinstatement and reemployment.
The difficulty arises when legislation lays down
that certain advantages are dependent upon criteria which, although,
theoretically, applying to both nationals & non-nationals alike, in
practice, more likely to be satisfied by nationals:
Ugliola (15/69) – a)
Italian national employed by German company. b) For purpose of calculating
seniority and promotion, German law provided military service in German army to
be taken into account. c) Ugliola performed military service with Italian
forces and not German forces.
Court held requirement that service be done in
German army be satisfied by far greater number of nationals than non-nationals,
enabling them to more easily claim seniority and promotion. Indirectly
discriminatory contrary to Regulation 1612/68 art. 7 (1).
Regulation 1612/68 art. 7 (2):
Nationals of another M.S. enjoy same social and tax advantages as national
workers.
Cristini v S.N.C.F. (32/75) –
a) S.N.C.F., French railway operator, offered discounted rail travel to large
French families (including families of deceased workers). b) Cristini, Italian
national, resident in France. Widow of Italian national who had worked in
France. c) Was refused discount card because was Italian & not French. d)
S.N.C.F. put forward Regulation
1612/68 art.7 (2) covered only social & tax advantages linked to
employment contract & discount was not linked to any employment contract,
thus C unable to claim discrimination on grounds of nationality in respect of
social advantage.
“In view of
the equality of treatment which the provision seeks to achieve, the substantive
area of application must be delineated so as to include all social and tax
advantages, whether or not attached to the contract of employment, such as
reductions in fares for large families.”
Regulation 1612/68 art.7 (2) can
apply to surviving lawfully resident family members of deceased worker.
Advantages may be sought after worker’s death to benefit of family remaining in
same Member State.
What are
“social and tax advantages”?
Even (207/78):
Social advantages = “…all those advantages which,
whether or not linked to a contract of employment, 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.”
Thus,
art.7 (2) and the
principle of non-discrimination appliy to any benefit, whether or not part of
employment contract, payable by virtue of individual’s status as worker or
residence on national territory.
Regulation 1612/68 art.7 (2) been
held to cover non-discrimination in accessing:
Reina (65/81) – Italian couple
residing in Germany obtained interest-free discretionary loan on birth of
child;
Unger (249/83) – Unemployed worker
entitled to minimum subsistence allowance;
Franscogna (157/84) –
Italian widow, living with son in France, entitled to old-age pension for those
falling outside social security cover;
O’Flynn (C-237/94) –
Irish national working in U.K. claimed expenses in connection with burying his
son;
Deak (94/84) – unemployed Hungarian
national living with mother, Italian national working in Belgium, obtained
unemployment benefits for school leavers;
Inzirillo (63/76) – Italian national
working in France obtained disability benefit for adult son;
Castelli (261/83) –
Italian widow living with son in Belgium obtained guaranteed income paid to old people in
Belgium;
Ioannidis (C-258/04) –
Greek national in Belgium able to tide over allowance for young people seeking
first employment;
Bernini (3/90) – Study grant is
social benefit. Dependent child of migrant E.U. worker entitled to obtain study
finance under same conditions as are applicable to children of national
workers;
Matteucci (235/87) –
Scholarship to study abroad granted to son of Italian worker employed in
Belgium who wanted to study in Belgium.
Next week the blog series will
introduce another European Union fundamental freedom: Free Movement of Goods.
In light of Brexit, this is a crucial issue for the United Kingdom (and
therefore, for Northern Ireland).
Jorge
Emilio Núñez
13th July 2018
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