European Union Law, Free Movement of People and Workers: Social and Tax Advantages
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.
Primary EU Legislation
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.
Secondary EU Legislation and Case Law
Regulation 492/2011 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 492/2011 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 492/2011 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 job centre), 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 492/2011 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 492/2011 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.”
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 492/2011 (formerly, 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 492/2011 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:
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 492/2011 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 492/2011 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”?
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.
There are many other cases relevant to Regulation 492/2011: Reina (65/81), Unger (249/83), Inzirillo (63/76), Ioannidis (C-258/04), etc.
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).
This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).
Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.
European Union Law and Free Movement of Goods
Friday 15th May 2020
Dr Jorge Emilio Núñez