The Preamble of Treaty on the Functioning of European Union

Introduction

The Preamble of Treaty on the Functioning of European Union (TFEU), aims to ensure a balanced and fair progress in the economic and social aspects of EU by removing barriers between States in order to improve the living and working conditions of the citizens. This progress can be achieved by cooperative and collaborative steps taken up by Member States.

Free movement of persons is one of the vital keys to achieve integration and consolidation of the European Union (“EU”). The concept of integration and consolidation includes removing barrier and any deterrence to the freedom of movement giving rise to EU citizenship. Such citizenship innately carries the right to work and live in any part of the EU. This right and freedom is considered to be one of the main factors of the progress of EU.

In order to enforce these objectives of EU and its treaties, the role of the Court of Justice of European Communities (“ECJ” or “Court”) comes at the forefront. There may have been criticism against ECJ for ignoring the interest of nations to maintain its integrity; however, ECJ has to strike a balance between maintaining equality of EU citizens and interests of Member States to maintain diversity.

This essay will deal with the concept of free movement of individuals and the role of ECJ in interpreting, implementing and enforcing EU policies and treaty provisions related to the topic. It will lay down various principles of effort undertaken by EU and ECJ to give an exhaustive and substantive environment where maximum benefits are tendered to nationals of Member States. This essay will list and explain a set of TFEU Articles, including Article 20 and 21 and Articles 45 - 49. The provisions of these Articles will be interpreted through relevant cases and related legal principles as laid down by ECJ will be provided. This essay will walk through the various court decisions for the past ten to twenty years with the aim to critically evaluate the development of the role of ECJ in tackling various ranges of cases around the issue of free movement of individuals.

Concept of Free Movement of Individuals

EU has listed free movement of people among three other freedoms – of goods, service and capital, as backbone of internal market (also termed “European Single Market” or “Common Market”).[1] Article 26(2) of TFEU defines internal market as comprising “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured”. Historically, the free movement of individuals within the EU is inter-linked with progressive economic policies. Free movement of individuals or professionals or workers is one of the four freedoms in TFEU, which was necessary to build internal market.

The association of free movement of individuals with aspect of economic and social rights finds its basis on the principle of lex loci laboris. This principle states that the law governing the territory where he works determines social rights and obligations of a person. The law governing the territory where he resides does not have any place in such determination. Linking this principle with the objective of right to free movement, it could rightly be stated that EU has adopted this principle as a basis for creating and developing internal market, which stands on the four freedoms, including free movement of workers.[4]

Role of ECJ in context of Articles 20 and 21 and other relevant articles of TFEU

One of the reasons for conflicts between Member States of EU comes from implementing the principles of equality in regard to citizenship and the aim to maintain diversity. EU through its policies and treaty provision guarantees citizens and their families the right to live and work in any part of the EU. Easier said than done, there are objections, restrictions and controls are exercised by Member States against nationals of other Member States. Member States and their government authorities define controls and restrictions such as down border controls and restrictions against claim of social security. ECJ and other EU judicial authorities deal with such measures taken up by Member States with a challenge to ensure there is a balance between its goal of free movement of individuals and Member States’ sovereign right of protecting its own interest.

TFEU provides for optimal use of resource by allowing allocation of resources from a jurisdiction of abundant resources to a jurisdiction where the value of resources is high. However, the value of resource in a member state where there is less demand may be low as compared to those in Member States where the demand is high and the value is consequently high. Even though Member States are part of the same EU, there can be differences in their strategies and policies related to economic development and national social protection. This may create a rift between the Member States generating unequal opportunities to free movement and stratification of social rights arising based on economic status as well as on place of origin or destination.

Articles 20-21

Article 20 aims for equality of citizens between Member States. All individuals of Member States, in addition to their national citizenship, are also are citizens of EU Union. Each individual is granted the right of free movement and of residence between Member States and has electoral rights of wherever they stay. They are even provided political benefits of diplomatic immunity with the same conditions as provided to nationals of that State. If any of these rights and freedom is violated or threatened, they can reach out to the European Parliament, European Ombudsman, or the institutions and advisory bodies of EU.

The 1992 Maastricht Treaty determined that a national of any EU Member State is provided EU Citizenship. Further, this was reiterated in the Lisbon Treaty and the EU Charter of Fundamental Rights, which elaborated and enforced rights associated with EU citizenship.[7] However, the applicability of EU citizenship may not necessarily require a cross-border link. Article 20 of TFEU restricts Member States’ actions that deprive rights attached EU citizenship. In Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm)[8], the ECJ held that this type of ‘deprivation effect’ takes place due to actions by Member States compelling citizens to leave EU altogether. This is the case where the Member State refuses residence and work permit to a national outside EU with his minor children who are nationals and resident of the Member States.

There seems to be conflict of opinion around the impact of application of EU Citizenship in that it has allegedly extended the scope of Articles 20 and 21. As inferred from Uecker,[9] it was noted that the idea of citizenship when mixed with the already provided freedom to movement leads to expansion of right to free movement and turned this right in more of personal rights that are open ended. This induces objective of providing economic benefits to become obsolete. Thus, the claim of the Court of its intention not to expand the right is rigged with weakness because the applicability of the concept of EU Citizenship has in fact widened the scope of personal rights.

As explained earlier, the freedom of movement has an economic perspective to it. However, in support of the effort of EU to break this link, ECJ has established legal principles to link the freedom associated with EU citizenship with other diverse rights that are not economic in nature. In Boumbast and R v Secretary of the State for the Home Department,[10] the Court ruled that EU citizens have general rights to move and reside freely within the Union. Such general rights are subjected to the terms and conditions as laid down under Article 20 and Article 21.

Article 21 of TFEU provides further enforcement of the rights and freedoms enlisted under Article 20. The right of movement and of residence is subject to the TFEU conditions laid down, but European Parliament and the Council can adopt enabling provisions to the exercise of such rights and freedoms, and can adopt measures to ensure social security or social protection. Thus in De Cuyper,[11] the Court held that the requirement of residence impose by a Member States to qualify for unemployment benefit infringes rights provided under Article 21 of TFEU. Consequently, a Belgian national even if he stays on France and come back to Belgium every three months does not disallow him for getting unemployment allowance.

The right and freedom as envisaged under Article 21 does not apply to the public sector. In Commission v. Belgium,[13] the Court cited exception of safeguarding public interest by ruling that Member State can reserve national posts for its nationals. Such posts involve direct or indirect exercise of authorities arising out of public law and duties. However, care must be taken to define application of such kind of exception. In Allué,[14] the Court held that “employment as a foreign-language assistant at a university does not fall within the exception relating to employment in the public service”.

The role of ECJ may seem discretionary and decisions may contradict each other. ECJ could play a pro-active role or could play an escapists role in interpreting and implementing provisions of these Articles. The basis of this claim being the area of discretion implied from relevant articles. For instance, if one sees Article 21 and Article 22, there are exceptions or conditions provided in them under which the rights and freedoms are subjected to. Rights and freedom provided under Article 21 and its implementation procedure provided under Article 22 are subject to conditions, limitations and measures adopted TFEU.[15] In Grzelczyk,[16] the Court observed that “Union citizenship is destined to be the fundamental status of nationals of member states, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such limitations as are expressly provided for”.

The implementation of the right and freedom provided under the Article 20 and Article 21 may give rise to a potential conflict between free movement and states’ desire to control entry. The role of ECJ in this regard has to find a balanced resolution to these conflicts by addressing relevant economic, social and political aspects. [17] If one sees the roles of ECJ and its expansive power to define and determine the scope of workers, its measure to ensure social securities and tax benefits to individuals may seem to be interfering on Member States social welfare scheme. However, not to be forgotten that obligations and authority of ECJ is bound by its established legal principle and by Treaty provisions like the Preamble of TFEU and relevant Articles.

Articles 45-49

The EU in its further aim to strengthen enforcement of equality and right to free movement and of residence, adopted the provisions of Article 45 to Article 49 in TFEU. The provisions provide for removing discrimination based practices and encouraging free choice of employment by abolishing barriers of administrative procedures and by taking all necessary steps such as securing minimum residence period for access to social benefits. The provisions of these Articles look to respond to the Preamble of TFEU, provides for economic unity, reduction of differences to bring harmony, and reducing the gap between developed and backward part of EU.

The Articles drives to achieve application of Member States’ commercial policy to conform to a uniform norm, by removing unnecessary restrictions and prohibitions. They aim to unify EU by bringing the social and economic solidarity by introduction and implementation of collaborative sharing program of resources and knowledge. These Articles look intertwined in laying down rules and principles and approaches to implement them. The legal principle barring discrimination based on nationality is laid down in Article 45 and Article 46 lays down rules to implement them. At the same time, Article 45 of TFEU seems to enforce the goal and legal principle set out under Article 20. Similar to the role of Article 45, Article 46 seems to lay down measure to ensure objectives laid down under Article 21 are met.

Article 45 provides secures freedom to move or reside granted to workers by removing nationality based discrimination in the area of employment, payment, or working conditions. It signifies free movement of service providers, self-employed and workers that are considered ‘factors of production’[18] with the exception on the ground of public health, security or policy. The determination of the areas under the exception is within the jurisdiction of Member States. From the perspective of Union Citizenship, this exception seems problematic as it goes against what the TFEU stands for.[19] However, there EU reserves its right to judicial review of Member States’ action through ECJ. Take the case of Commission v The Netherlands (criminal convictions),[20] where ECJ reviewed the

applicability of Directive 64/221 that provides for procedural safeguards to lawful or unlawful resident of the state state’s decision. Expulsion of such resident with non application of EU Directive 64/221 to a foreign national is contrary to EU laws. Similar is the case in Pirkko Marjatta Turpeinen,[21] which was referred to ECJ by the Finnish Supreme Court on issues about residence and citizenship. ECJ held that a national even if residing in another member state would still benefit from the TFEU provisions and would therefore be beneficial to social security.

This was laid down in Article 7(2) of Regulation 492/2011, which provides that a worker can claim social and tax advantages same as national workers. In Terhoeve v Inspector van de Belastingdienst Particulieren/Ondernemingen Buitenland,[22] it was held that if a worker does not receive higher benefits in return from pay higher social security when he moves from one state to another, it leads to obstruction of free movement. Member States should understand that the right to worker to move and work in any part of the EU is granted by TFEU and not by any measure of Member States. This was held in Roland Ritili v Ministre de l’Interieu[23] and Ministree de I’Interieur v Aitor Oteiza Olazabal,[24] where the Court stated that the right is not a result of conferral of residence permit by the Member State.

In some cases, ECJ will not venture to areas of national characteristics where Member States has more authority and discretion to exercise. ECJ laid down the legal principle that TFEU grants Union citizenship to citizens of Member State. This was held in Martinez Sala v Freistaat Bayern.[25] The right of citizens to move and reside freely within EU is a primary right and therefore, a Member State can be held liable for discrimination based on nationality if a Member State refuses a benefit to a Union citizen the same benefit granted to its residents based on non possession of a document, which is not required by a national of the same Member State. However, in Janko Rottmann v Freistaat Bayern,[26] the Court stated EU can judicially review Member States’ discretion to acquisition or loss of nationality, but cannot interfere with the discretion.[27] On similar lines, in Criminal Proceedings against Wijsenbeel[28] ECJ did not comment of the contention whether 21 TFEU had direct effect. The case involved a criminal proceeding against a Dutch national for refusing authorities to let them check his passport to establish his nationality when re-entering the Netherland. ECJ left it to the Member States to determine its own right to carry our check.

There is a claim that abuse of laws related to the right of free movement is in practice by Member States in the area of competition and trademark law. Initially, it might be because Member States fear the EU law may override its national laws. ECJ normally acknowledge these attempts of Member States, but rarely is on consensus that national legal actions can override EU law. It engages in widely interpretation of treat provision to ensure maximum enforcement of rights and freedoms in regard to the increase in abuse of EU rights. However, ECJ ensures removal of such abuse by nationals from the scope of TFEU. In Lair,[29] ECJ held that a worker has moved to another Member State just to enjoy after a short duration of employment, he cannot claim any benefits provided within EU law. To prevent such kind of abide, ECJ emphasis the cooperation of Member States in determining potential abuse of EU right and determine such abuse on case-by-case basis with the ultimate consideration to preventing altogether artificial arrangements.

Article 46 authorizes the European Parliament and the Council to issue directives or make regulations to enforce free movement of workers by removing barriers of administrative procedures and practices. It also abolishes qualifying periods for available employment laid down by States’ law or agreement between Member States and non-national terms and conditions related to free choice of employment. Clause (d) of the Article in conformity with objective of optimal allocation of resources under the free movement of individuals provides measure to notify employment offers in order that the balance of supply and demand is maintained. In addition to the above, in the need to reform and simplify administrative procedures related to the system of recognition of professional qualifications, the Professional Qualifications Directive (now Directive 2013/55/EC) was adopted. According to this Directive, professional training may also qualify as employment, as was held in Cunthis Mattern and Hajrudic Cikotic v Ministre du Travail et de l’Emploe.[31] The amount of remuneration and origin of funds does not conclusively decide whether a person is a worker or not.

ECJ has decided many cases and laid down many legal principles to remove discrimination in the aim to achieve quality and freedom of movement. In the case of Clean Car Autoservice GmbH v Landeshauptmann von Wien[32] ECJ held that right of workers to be employed without discrimination is equivalent to employer’s right to engage them in accordance with the rules governing freedom of movement of workers. For instance, a company policy that there should be at least a single manager of a particular Member state constitutes indirect discrimination.

Article 47 and Article 48 provides steps for ensuring exchange of employed and self employed migrant workers between the Member States. This somehow conforms to the objective of optimal allocation of resources. Article 47 lays down about joint initiatives between Member States to encourage exchange of young employed and self- employed migrant workers and provides them social security as stated Article 48. Article 48 provides that the European Parliament and the Council shall adopt measures to secure for minimum residence period for access to social benefits.

The Court enforces and interprets the provisions of both of these Articles by its ruling on cases related to educational qualification. In Thieffry,[33] ECJ held that if a national diploma is recognized as an equivalent qualification, the Member State of establishment commits discrimination if it demands national diploma prescribed by the legislation of the same state and such act is not compatible with Article 47. A Member State of establishment should provided same conditions as it provides to its nationals, to a national holding such degree or qualification. Similarly, in Morgenbesser,[34] a national of a Member State has the freedom of establishment and recognition of equivalent diplomas. A trainee lawyer under practice for admission to the bar does not require getting her diplomas recognized by the host Member State. In such cases, the Member State can compare her qualifications and professional experience with national law requirements.

Similar rights to those under Article 48 are also extended to establishments under Article 49. Freedom of establishment shall include the right of nationals to take up self employment or manage businesses. Thus, in Commission v. France,[35] it was held that a national with required qualifications must be allowed to establish himself or must be provided support and services in its overseas jurisdictions. Further, in Klopp,[36] was held that professionals such as lawyers shall, subject to professional rules of conduct, have freedom to have secondary establishment by exercising the right to set up and operate establishment in more than one jurisdiction. Member States are prohibited from putting any kind of restraint against nationals’ right to secondary establishment. In another case, Commission v. France,[37] related to the professional of doctors and dentists, it was held that “prohibition of enrolment in a professional association on the ground of enrolment in another Member State” is incompatibility with Article 49. For taking the benefits under Article 49, the activities should qualify to be professional services. It was therefore held in Humbel,[38] that a course in a technical institute forming part of the national education system does not constitute a service.

Also, Citizenship Directive 2004/38, entered into force on 30 April 2006, provides the rights of citizens and family member to move and reside freely within EU. This Directive influence significant changes in consolidating citizens’ rights of movement and residence. The basic aim is to provide more benefit to citizens who stay longer in a Member State.

Commission v Belgium,[40] ECJ, in its role to enforce integration of migrant workers, pulled in the ambit families and dependent of the workers. Therefore, it decided that annulment of marriage will not lead to loss of the right of residence of family members of the worker. Further, Directive 2004/37 grants rights to family members of worker to join their family within the Union.

The attempt to thrive balance between movement and allocation of resource and the interest of the State to secure its nationals, ECJ needed to determine the concept and scope of the term ‘workers’. In the case, Hoekstra (nee Unger),[41] ECJ held that the effect of Articles 45 to 49 would be diluted of all of its effect if the meaning could be altered by national law. Scope of ‘worker’ includes those who are employed and even those who remain in a Member State after his employment period and those who are in part time employment earning less than minimum wage.

In Levin V Staatssecretaris van Justice,[42] ECJ, rejecting ruling of the Dutch court that defined the spouse, part timer earning less than the minimum wage, a worker. Further factors to qualify as a worker, the Court in Kempf v Staatssecretaris van Justice[43] laid down that in order to be qualified as a worker, there must be a genuine remuneration, which is not marginal or ancillary, and there should be an economic activity involved (Steymann v Staatssecretaris van Justice).[

Directive 2004/35 provides residence permits rules for acquisition of a residence card for both Union citizen and for his family member. This rule goes against the essence of Article 20 and Article 21. However, in Jean Noel Royer,[45] the Court held that the Directive is not mandatory citing further that a resident permit is simply evidence of Union right of residence and failure to obtain one is not sufficient enough to expel a Union National. It may only make the person liable to proportionate and non discriminatory sanctions. Even than in another case, Secretary of Sate for Work and Pensions v Maria Dias,[46] the Court held that the right to permanent residence does not emanate from just a possession of a valid residence permit.

Seeing the trend in which ECJ the type of cases in which it gave conclusive decision and decisions that it gave, there are two impressions derived out of this trend. Firstly, in few past decades, ECJ looked to follow a non interference policy towards Member States’ policies and actions as seen in cases like Janko Rottmann v Freistaat Bayern earlier. Secondly, certain decisions create uncertainties in the scope or definition of free movement of workers. Thirdly, recent judgments indicate conflicts between ECJ and legal systems of Member States where alleged interferences beyond limits on the part of ECJ occurred.

The case of Brian Francis Collins v Secretary of State for Work and Pension,[47] brings non-uniformity in the concept and definition of worker while laying down the distinction between people already employed and people searching for a job. The Court ruled that “persons who have already entered into the employment market in another Member State and are worker, or who have worked but are no longer working are workers” Such workers can claim the social and tax benefit arising out of the employment; however, individuals looking for a job in another Member State will just have equal opportunity to access to employment, but cannot claim other benefits. This possibly will lead to a discriminatory gap between the two types of individuals and apparently lead to ECJ intruding into the welfare schemes of Member States.

ECJ in its initial activism related to free movement of workers focused on removal of discriminations and varied types of obstacles. But, as Barnard claimed, ECJ has changed its approach by shifting the focus to freedom of movement and greater aim is laid upon achieving objectives of single market. Thus, in its endeavor to enforce freedom of movement, ECJ may exercise discretion that interferes with national legal system and its autonomy. Not to accept this aspect, the approach of ECJ is commendable in that it furthers the goal of free movement of persons and good.[48] Further, governance, rather than interference is the right term to define this approach. This approach operates as a tool to expand the applicability of equality and freedom with the ultimate aim of meeting the goal of integrating markets and economies of Member States.

Conclusion

Having gone through the provisions of relevant Articles and the enforcement activism of ECJ, it is fair to conclude by giving an affirmation to the movement of judicial activism of ECJ. ECJ wears multiple hats, from being a court of justice that determines and interprets treaty provision to being a court of justice that enforces those provisions. As must have seen, ECJ has gone through many historical changes in its role as an agency to enforce provisions related to free movement of persons. It has been strictly adhering to EU laws in general while tackling cases apparently falling with national laws. The interpretation of national and its adoption within the ambit of EU citizenship under Directive has brought a significant revolution in easing the access to benefits arising out of the rights and freedom under TFEU.

As seen earlier in some cases, ECJ is subjected to the whims of Member States that push forward its national interests. In certain situations, Member States may abuse the EU systems by applying the exception of public policy, security, or interests. Using its power of judicial review, ECJ keeps a check on actions of Member States and ensure conformity to EU laws. In this role, the proactive activism of ECJ may be criticized for interfering with Member States’ policies. However, in situation where there is a veil that might have been created by Member States in its aim of national protectionism, such interference, which it may rather be termed governance and control, is prerequisite to maintain order in the EU system. Notwithstanding the criticism, the place of ECJ in the EU is vital to unity and consolidation of the Members States in their endeavor to achieve progressive economic, social and political objectives. ECJ has put Member States in an environment where they can efficient access to benefits of the Articles and can contribute to maintaining conformity with the interest of EU society as such.

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