Article 267 & 45 TFEU

Overview

Due to the large number of Member States within the EU, there naturally exists a wide variety of domestic laws within the Union, and thus a wide variety of legal environments in which EU law must operate. In addition to the variety in the domestic laws of each state, they also possess significant discretion when it comes to the implementation of EU law. In effect, this means that each law passed by the Union could potentially give rise to 28 different interpretations of the same piece of legislation, leading to legal inconsistency (as noted in Rheinmuhlen-Dusseldorf.^[1]) This means that there is naturally some scope for confusion and a subsequent need for further clarification of the law.

With this problem in mind, Article 267 of the Treaty on the Functioning of the European Union (TFEU) provides for the mechanism of preliminary rulings by the European Court of Justice (ECJ). These rulings in turn clarify points of EU law (in specific circumstances laid out below) and provide further guidance on the implementation of the relevant legislation, meaning that each State is able to implement the law in a way which is both in line with EU jurisprudence, and furthermore in a manner which is likely to be similar to that of other Member States.

It is of note that this process is by no means instantaneous – cases take around 18 months to be heard, and so a variety of situations exist in which an ECJ ruling would either be of little use (particularly when time limits are involved), or would cause significant cost to the member state and the parties to the case.^[2]

The Article 267 Mechanism

The Article creates a three stage process which Member States follow in order to receive and implement the Article – referral, ruling, and application.

The first stage is that of national referral. Domestic courts are able to ask for clarification on two specific aspects of EU law, denoted in the Article under (a) and (b). The first is clarification on the interpretation of EU Treaty law, that is, the law contained in the Treaty of the European Union (TEU), the TFEU, the amending Treatities and the Treaties of Accession.^[3]

The second is on the validity of acts taken by EU institutions or bodies, and the interpretation of any law arising from those acts. The scope of these enquiries is relatively large, extending not only to regulations, directives and decisions of EU bodies, but also to opinions and recommendations issues by those bodies (as per Grimaldi v Fonds des Maladies Professionnelles^[4].) Indeed, in Deutsche Shell AG v Hauptzollamt Hamburg^[5]the scope of the ECJ’s jurisidation extended to subjects as subtle as the ‘arrangements’ made by EU committees. It was also noted in the above case that there is no need for the subject of a preliminary ruling to be an element of the law with compulsory effect (such as a regulation or direction); the ECJ instead can rule on matters which national courts are merely obliged to take account of.^[6]

This being said, there are some limitations on the scope of Article 267. The ECJ will note rule on hypothetical matters (as perLaurenco Dias (Manuel José) v Director da Alfadega da Porto.^[7]) Furthermore, the ECJ limits itself to ruling on matters of EU law, and thus requires that each petition clearly states all matters of fact and domestic law, so as to maximise the efficiency with which the ECJ can operate.^[8]

Furthermore, the courts which may petition the ECJ are limited to those with state recognition – that is, courts and tribunals are recognised, whereas private arbitration and mediation processes are not (as perNordsee v Reederei Mond.)^[9]

The second stage involves the preliminary decision itself. The ECJ will examine the question and issue its ruling – doing so with haste where the decision involves incarceration (as noted in the Article.) It is notable that in certain circumstances the ECJ will be proscribed from making a ruling, especially in situations where the subject of the ruling regards EU foreign or security policy, as per Article 275 of the TFEU.

The third and final stage of the process is the implementation of the clarified law. Whilst the ECJ might clarify the law, they do not implement it. Instead, this is left to the courts of the petitioning Member State – for example, in the Factortame^[10] cases legal discussion moved from a domestic setting in the (then) House of Lords, up to the ECJ for clarification, and then back to the House of Lords for the implementation of the ECJ’s decision.

Article 45 TFEU

Overview

The role of the worker (and the legal protection of the worker) has changed significantly since the conception of the European Economic Community. Whilst previously the free movement of workers was seen merely as a means to enable workers to move to fill any labour shortages within the EU, the law of the EU has now evolved into a complex system, protecting the right of EU citizens to pursue employment across the Union.^[11] The free movement of workers can also be linked to the EU’s origins in the wake of WWII, with the emphasis on free movement of workers fulfilling the desire of the EU’s founders to maximise economic integration as a means of disincentivising violent conflict.^[12]

To this end, Article 45 of the TFEU lays out the legal protection that workers receive from the EU when pursuing employment in other Member States.

Article 45

Article 45 is split into four subsections, detailing the extent of the right to freedom of movement for workers. Each subsection has received significant examination and refinement over the years, as a result of both ECJ rulings and secondary EU legislation.

Subsection 1 notes the freedom itself. It is notable that the definition of a ‘worker’ has been refined by the ECJ. In particular, ECJ has stated the term is defined by Union law, rather than domestic law (in Hoekstra v Bestuur der Defriffsvereniging voor Detailhandel en Ambachten^[13]), in order to avoid the confusion that would be caused by a multitude of domestic definitions. Whilst this subsection says little of how the right is to be implemented, Article 46 of the TFEU provides the basis for secondary legislation, enabling Article 45 to take full force.^[14]

Subsection 2 notes that this freedom must be protected through the abolition of nationality-based discrimination between domestic and foreign workers. This subsection can be read as an extension of the anti-discrimination principle laid out in Article 18 of the TFEU, although the definition of what constitutes discrimination has been clarified in case law. The ECJ has specifically noted, in Allué and Coonan v Universit degli studi di Venezia^[15]that Article 45(2) extends beyond matters directly concerning employment, but instead includes any condition which might make the employment of EU workers less favourable than domestic citizens.

Subsection 3 notes specifically that in addition to the right to free movement, workers have the right to accept offers of employment, move to the State within which the employment is available, stay in that State and, notably, to stay in that State post-employment, given certain conditions are met. Whilst originally referring, largely, to a worker’s right to remain in retirement^[16] Directive 2004/38 provides a list of situations in which the right to remain operates, including situations of involuntary unemployment or temporary incapacity to work. Not only does Article 45 confer rights upon the individual worker, but their family as well.^[17] In essence, the family of a worker (including spouses, children and dependants) possess the right to move alongside that worker, under Directive 2004/38. It is also of note that individuals also possess a right to temporarily relocate to another Member State for the purposes of seeking work (as confirmed in Procureur du Roi v Royer.)^[18]

Finally, subsection 4 notes that there is an exception to the Article in cases involving public service employment. Further clarification on the definition of public service has been provided by the ECJ. In Commission v Belgium^[19]the scope of Article 45(4) was limited to posts regarding safeguarding State interests (such as work within the security services.) Indeed, this is confirmed by Lawrie-Blum v Land Baden-Wuttemberg,^[20] in which it was confirmed that the scope of public services does not extend to teachers, even if in the employ of the State. Instead, emphasis was placed on 45(4) as a means of safeguarding national security interests.^[21]

Whilst the above applies to those seeking to move between States for work, it is notable that none of the above apply to domestic situations. For example, in Morson and Jhanjan v Netherlands^[22] the claimants, who were both resident within the Netherlands, were unable to rely on EU law to be joined by their family. It is, therefore, necessary for a worker to have moved (or be attempting to move) between Member States in order to avail themselves of the status given to EU workers, with those rights not extending to those who merely work within the EU.

Bibliography

Legislation

Treaty on the Functioning of the European Union

Council 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

Cases

Brasserie du Pecheur SA v Germany and R v Secretary of State for Transport, ex p Factortame (‘Factortame III’) [1999] 3 WLR 1062 HOL

C-33/88 Allué and Coonan v Universit degli studi di Venezia [1993] ECR I-4309

C-149/79 Commission v Belgium [1980] ECR 1845

C-188/91 Deutsche Shell AG v Hauptzollamt Hamburg [1993] ECR I-363

C-322/88 Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4408

C-75/63 Hoekstra (née Unger)  v Bestuur der Defriffsvereniging voor Detailhandel en Ambachten [1964] ECR 177

C-343/90 Laurenco Dias (Manuel José) v Director da Alfadega da Porto [1992] ECR I-4675

C-66/85 Lawrie-Blum v Land Baden-Wuttemberg [1986] ECR 2121

C-35/82, C-36/82 Morson and Jhanjan v Netherlands [1982] ECR 3723

C-102/81 Nordsee v Reederei Mond [1982] ECR 1095

C-48/75 Procureur du Roi v Royer [1976] ECR 497

C-166/73 Rheinmuhlen-Dusseldorf [1974] ECR 33

Books

Berry E, Homewood MJ, Bogusz B, Complete EU Law: Text, Cases, and Materials (OUP, 2013)

Fairhurst J, Law of the European Union (Pearson, 2012)

Journal Articles

Garrett G, Kelemen RD, Schulz H, ‘The European Court of Justice, National Governments, and the Legal Integration in the European Union’ (1998) 52 International Organisation 149-176

Other

Sodha S, ‘Why is EU free movement so important?’ (BBC, 27 July 2015) Available at http://www.bbc.co.uk/news/world-europe-33655318 [Accessed 11/02/2016]