Free Movement Of Workers In The EU

Regulation 492/2011 – Free Movement Of Workers In The EU

Regulation 492/2011^[1] is a codification of Regulation 1612/68^[2] due to the substantial amendments that were made over the years.^[3] This regulation has been created to assist in providing free movement to workers within the Union.

Background

This Regulation^[4] was created to codify the previous regulation,^[5] so as to avoid confusion. It was also created to help promote migration. Migration between the original member states was considerably lower than migration from Eastern European countries.^[6] To try and combat this issue and to try and promote migration, the Union created a number of measures, most notably Regulation 492/2011,^[7] which gives rights to workers and their families when they migrate to a member state. This Regulation simply reiterates what is stated under article 45 Treaty on the Functioning of the European Union (TFEU).^[8] However it also adds specific actions which cannot be taken by a member state.^[9]

Main Aim

The main aim of this legislation was to provide workers and their families with additional rights which would allow for the objectives laid down in Articles 45^[10] and 46^[11] of the TFEU to be achieved. It is there to facilitate the free movement of workers and their families but also to ensure that the worker and their family integrate into the host member state.^[12]

What were the changes?

This Regulation has assisted with three main issues; EU citizens having access to employment with no discrimination,^[13]EU citizens receiving equal treatment during employment within a host member state^[14] and providing the families of workers with rights.^[15]

Issue one- Access to employment

Articles 1-6 of the Regulation 492/2011^[16] provide that a non-national should have the same access to employment as a national of a member state and aim to remove any discrimination, whether direct or indirect.

A directly discriminatory measure is one whereby a migrant worker is treated less favourably than a national of the member state.^[17] For example there was a law discussed in Commission v Italy^[18] which stated that private security work could only be undertaken by Italian nationals employed by Italian security firms. This was a direct breach of union law as it prevented any non-Italian nationals from doing private security work. Article 3(1) of the Regulation^[19] provides further examples of what constitutes direct discrimination. This includes any law, regulation or administrative action/practices which are undertaken by the Member state which limits the access to employment for a non national by subjecting them to conditions that do not apply to their own nationals. National provisions will also not apply if the primary aim is to prevent nationals from other member states from the employment offered.^[20]This is a direct breach of Article 45 TFEU.^[21] These practices by the Member state can only be continued if it falls within the express derogations.

This Regulation also attempts to eliminate any indirect discrimination which could exist within the practices of the member state. This covers a broad range of provisions which includes a non national being required to provide a period of service or residence within the host state before they receive a particular benefit. This links to the second issue being tackled by this Regulation.

Issue 2 – Right to equal treatment during employment

The main Article in relation to this is Article 7.^[22] Article 7(1) provides that a non-national will not be treated differently from a national in respect of any conditions of employment.^[23] Article 7(2) then provides that a migrant worker is to have the same entitlement to social and tax advantages as national workers.^[24] However, the current definition within 207/78 Even^[25] is very broad and could allow any social or tax advantage to fall within the definition. Finally Article 7(3) provides that there should be equal access to vocational courses^[26] but this is only if it is to prepare the individual for a particular occupation and not simply for a person to improve their general knowledge.^[27]

Articles 8 and 9^[28] also assist in dealing with this issue as they relate to the rights of Trade Unions and the rights to housing.

Issue three- The rights of family members

Article 10 of the Regulation^[29] provides that family members of the workers have the same right to access education as nationals of the member state and the host state is not to discriminate against any person based on their nationality.

Therefore, Regulation 492/2011^[30] assists in making sure those workers and their family who migrate to another member state, receive the same treatment in relation to their access to employment and their treatment during employment within the host member state as a national would receive.

European Communities Act 1972

This Act was granted Royal Assent on 17 October 1972^[31] and meant that the United Kingdom became an official member of the European Economic Community on 1 January 1973.^[32]

Background

During the late 1940’s to early 1950’s it was found that the Western European supremacy was coming to an end and there were other powers rising up such as the United States and the Soviet Union.^[33] So as to protect Europe from War and improve the economic climate, it was suggested that there should be economic integration.^[34] In 1957, France, West Germany, Italy, the Netherlands, Belgium, and Luxembourg signed a treaty in Rome which established, for the first time, a European Economic Community which was referred to as the common market.^[35]

Other Member states chose to decline in joining the common market, including the United Kingdom.^[36] However, after clear signs of there being significant economic growth, the United Kingdom made two applications to become members, both of which were rejected due to the close ties the United Kingdom held with the United States.^[37] There was also a political issue within the United Kingdom upon making the decisions to apply due to the UKs sovereignty.^[38] The intention to become a member of the EEC created a split within the major political parties within the United Kingdom and in particular, there was a lot of resistance from the Labour party.^[39] However, in 1973 the United Kingdom finally became members of the Common Market.^[40]

Main Aim

The main purpose of the European Communities Act 1972^[41] was to allow for European Union laws to be introduced into the domestic legislation which allowed for the United Kingdom to become a member of the European Economic Community.

What were the changes?

The most significant change caused by the introduction of this Act^[42] was the fact that it made the United Kingdom a member of the European Economic Community which meant that the United Kingdom was now subject to EU laws.^[43]

One of the primary changes caused by this Act is under section 2(1).^[44] This section states that EU provisions have direct effect within the United Kingdom.^[45] This means that EU regulations and certain articles of the Treaties are automatically incorporated and binding within national law and there is no requirement for there to be a further Act of parliament.^[46] This was one of the main factors which created problems within the United Kingdom when their introduction to the European Economic Community was first suggested. This was because it raised disputes as to whether the United Kingdom would remain a sovereign state should they join the EU as it allows for EU legislation to govern the United Kingdom without the introduction of any domestic laws.

Another change identified under section 2^[47] is that EU legislation is supreme within any member state and if there are any disputes as to whether domestic legislation breaches EU laws, the member states courts are then obligated to submit questions to the European Court of Justice to get clarification on whether or not the domestic laws need to be changed.^[48] This, again, was a significant change for the United Kingdom due to the fact that it is a dualist state.^[49] This was a significant factor within the case of Factortame.^[50] There was a dispute over whether a national court could provide interim relief where rights under community law were in dispute.^[51] As community law is supreme it was held that a national court has the right to grant interim reliefs if the only obstacle, in a case concerning community law, is a national law.^[52] This again demonstrates the changes caused to the legal system within the United Kingdom from becoming a member of the EEC.

Another change brought about by the introduction of this Act is how the United Kingdom is able to trade. By being a member of the EU the United Kingdom became part of a customs union where there are no tariffs on goods moved between member states and there is a common tariff for any goods imported/exported to a non EU state.^[53] This change meant that there could be no independent trade policies.^[54]

Finally, not only was the Freedom of Trade introduced by this Act but, as European legislation is to have supremacy within a member state, it also meant the introduction of provisions such as the right to freedom of movement^[55] between member states and the right to freedom to provide services between member states.^[56] These changes occurred within the United Kingdom simply by becoming a member.

Bibliography

Primary Sources

Legislation

Consolidated Version of the Treaty on the Functioning of the European Union, 2012/C 326/01

European Communities Act 1972

Regulation (EU) No 1612/68, OJL 257

Regulation (EU) No 492/2011, OJL 141/1

Case Law

207/78Criminal proceeding against Even [1979] ECR 2019

24/86 Blaizot v Universite de Liege and others [1988] ECR 379

C-221/89 R v Secretary of State for Transport ex p. Factortame(Factortame 2) [1991] ECR I-3905

Secondary Sources

Books

Barnard C, The Substantive Law of the EU: The Four Freedoms, (4^th Edn, 2013, OUP)

Foster N, Blackstone’s: EU Treaties & Legislation 2012-2013, (23^rd Edn, 2012, OUP)

Weatherill S, Cases and Materials on EU Law,(11^th Edn, 2014, OUP)

Papers

House of Commons, The Economic Impact of EU membership on the UK, (2013), SN/EP/6730

Websites

House of Commons, The EU Bill and Parliamentary Sovereignty – European Scrutiny Committee,(2010) Available at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63304.htm accessed 22-2-16

Jurajkunakeu, Power of national courts to grant interim relief where rights claimed under Community law are at issue, 2013, Available at http://www.caselawofeu.com/power-of-national-courts-to-grant-interim-relief-where-rights-claimed-under-community-law-are-at-issue/accessed 23-2-16

Lord Norton, The Norton View: The European Communities Act 1972, (2010) available at https://nortonview.wordpress.com/2010/11/19/the-european-communities-act-1972/ accessed 23-2-16

Parliament, European Communities Act 1972, Available at http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/collections/parliament-and-europe/european-act-1972/accessed 21-2-16

This Day in History, Common Market Founded, Available at http://www.history.com/this-day-in-history/common-market-founded , accessed 22.2.16

^[1] Regulation (EU) No 492/2011, OJL 141/1

^[2] Regulation (EU) No 1612/68, OJL 257

^[3] Regulation (EU) No 1612/68, OJL 257

^[4] Regulation (EU) No 492/2011, OJL 141/1

^[5] Regulation (EU) No 1612/68, OJL 257

^[6] Barnard C, The Substantive Law of the EU: The Four Freedoms, (2013, 4^th Edn, OUP)

^[7] Regulation (EU) No 492/2011, OJL 141/1

^[8] Consolidated Version of the Treaty on the Functioning of the European Union, 2012/C 326/01, Article 45

^[9] Regulation (EU) No 492/2011, OJL 141/1

^[10] Consolidated Version of the Treaty on the Functioning of the European Union, 2012/C 326/01, Article 45

^[11] Consolidated Version of the Treaty on the Functioning of the European Union, 2012/C 326/01, Article 46

^[12] Barnard C, The Substantive Law of the EU: The Four Freedoms, (2013, 4^th Edn, OUP)

^[13] Regulation (EU) No 492/2011, OJL 141/1, Articles 1-6

^[14] Regulation (EU) No 492/2011, OJL 141/1, Articles 7-9

^[15] Regulation (EU) No 492/2011, OJL 141/1, Article 10

^[16] Regulation (EU) No 492/2011, OJL 141/1, Articles 1-6

^[17] Barnard C, The Substantive Law of the EU: The Four Freedoms, (2013, 4^th Edn, OUP)

^[18] C-283/99 Commission v Italy [2001] ECR I-4363

^[19] Regulation (EU) No 492/2011, OJL 141/1, Article 3(1)

^[20] Regulation (EU) No 492/2011, OJL 141/1, Article 3(1)

^[21] Consolidated Version of the Treaty on the Functioning of the European Union, 2012/C 326/01, Article 45

^[22] Regulation (EU) No 492/2011, OJL 141/1, Article 7

^[23] Regulation (EU) No 492/2011, OJL 141/1, Article 7(1)

^[24] Regulation (EU) No 492/2011, OJL 141/1, Article 7(2)

^[25] 207/78 Criminal proceeding against Even [1979] ECR 2019

^[26] Regulation (EU) No 492/2011, OJL 141/1, Article 7(3)

^[27] 24/86 Blaizot v Universite de Liege and others [1988] ECR 379

^[28] Regulation (EU) No 492/2011, OJL 141/1, Articles 8 & 9

^[29] Regulation (EU) No 492/2011, OJL 141/1, Article 10

^[30] Regulation (EU) No 492/2011, OJL 141/1

^[31] Parliament, European Communities Act 1972, Available at http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/collections/parliament-and-europe/european-act-1972/ accessed 21-2-16

^[32] Parliament, European Communities Act 1972, Available at http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/collections/parliament-and-europe/european-act-1972/ accessed 21-2-16

^[33] This Day in History, Common Market Founded, Available at http://www.history.com/this-day-in-history/common-market-founded , accessed 22.2.16

^[34] This Day in History, Common Market Founded, Available at http://www.history.com/this-day-in-history/common-market-founded , accessed 22.2.16

^[35] Barnard C, The Substantive Law of the EU: The Four Freedoms, (2013, 4^th Edn, OUP)

^[36] This Day in History, Common Market Founded, Available at http://www.history.com/this-day-in-history/common-market-founded , accessed 22.2.16

^[37] This Day in History, Common Market Founded, Available at http://www.history.com/this-day-in-history/common-market-founded , accessed 22.2.16

^[38] Lord Norton, The Norton View: The European Communities Act 1972, (2010) available at https://nortonview.wordpress.com/2010/11/19/the-european-communities-act-1972/ accessed 23-2-16

^[39] Lord Norton, The Norton View: The European Communities Act 1972, (2010) available at https://nortonview.wordpress.com/2010/11/19/the-european-communities-act-1972/ accessed 23-2-16

^[40] Parliament, European Communities Act 1972, Available at http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/collections/parliament-and-europe/european-act-1972/ accessed 21-2-16

^[41] European Communities Act 1972

^[42] European Communities Act 1972

^[43] European Communities Act 1972

^[44] European Communities Act 1972, S 2(1)

^[45] European Communities Act 1972, S 2(1)

^[46] Barnard C, The Substantive Law of the EU: The Four Freedoms, (2013, 4^th Edn, OUP)

^[47] European Communities Act 1972, S 2

^[48] European Communities Act 1972, S 2

^[49] House of Commons, The EU Bill and Parliamentary Sovereignty – European Scrutiny Committee,(2010) Available at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63304.htm accessed 22-2-16

^[50] C-221/89 R v Secretary of State for Transport ex p. Factortame(Factortame 2) [1991] ECR I-3905

^[51] C-221/89 R v Secretary of State for Transport ex p. Factortame(Factortame 2) [1991] ECR I-3905

^[52] C-221/89 R v Secretary of State for Transport ex p. Factortame(Factortame 2) [1991] ECR I-3905

^[53] House of Commons, The Economic Impact of EU membership on the UK, (2013), SN/EP/6730

^[54] House of Commons, The Economic Impact of EU membership on the UK, (2013), SN/EP/6730

^[55] House of Commons, The Economic Impact of EU membership on the UK, (2013), SN/EP/6730

^[56] House of Commons, The Economic Impact of EU membership on the UK, (2013), SN/EP/6730