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”?
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