Abstract
European Union citizenship has been criticised as an essentially unequal project because it does not allow everybody to fully exercise the main right attached to it, i.e. free movement across Europe, and does not allow complete equal treatment in access to social benefits for those who are economically inactive. As a result, citizenship rights can only be enjoyed by those who can afford mobility. This contribution focusses on the personal scope of free movement of workers as the precedent of Union citizenship. The argument put forward is that the definition of worker, which constitutes the main demarcation line between economically active and inactive persons, is already marked by discrimination and arbitrariness in the identification of who is a worker under EU law. It is submitted that the establishment of Union citizenship has not solved these problems, since economic activity is still a deal breaker in the distribution of rights. Finally, this chapter argues that the inequalities that free movement of workers entails are intertwined with its double nature as economic freedom and a fundamental right and that this double nature should lead to questioning the very divide between economic activity and inactivity. Rethinking such a rift triggers questions as to the relationship between economic free movement and Union citizenship more generally.
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Notes
- 1.
On the relationship between of inequality and non-discrimination, see Muir 2019, p. 21. The concept of non-discrimination here adopted corresponds to that adhered to by the Court of Justice of the EU, which imposes equal treatment of comparable situations, according to the classis Aristotelian definition. See Fredman 2011.
- 2.
Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, O.J. 2004, L 158/77 (hereinafter Directive 2004/38).
- 3.
Neuvonen 2016, p. 43.
- 4.
Neuvonen 2016, p. 60.
- 5.
Case C‑333/13, Dano [2004] EU:C:2014:2358; recently confirmed in Case C-709/20, CG, EU:C:2021:602.
- 6.
Dano, supra n 5, paras 68–69 and 73–74.
- 7.
Spaventa 2016, p. 47.
- 8.
Case C-34/09 Ruiz Zambrano [2010] Opinion of AG Sharpston EU:C:2010:560, para 123 and ff, in particular para 135.
- 9.
Spaventa 2008, p. 38.
- 10.
Ambrosini 2017, pp. 273–274.
- 11.
- 12.
Arena 2020, p. 154.
- 13.
O’Brien 2016, pp. 965 and 975.
- 14.
- 15.
Already in 1961 Commissioner Levi Sandri had stated that he did not consider free movement ‘un simple moyen d'obtenir une combinaison optimale des facteurs de production, une combinaison optimale du facteur travail avec les autres facteurs de la production ; je la considère en réalité comme le premier aspect d'une citoyenneté européenne.’ See Débats de l’Assemblée Parlamentaire Européene 1961 n 48, p. 135. Plender 1976; Garth 1986, p. 86 in footnote 3, which refers to the words of the Vice President of the Commission in 1968.
- 16.
- 17.
Regulation 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, O.J. 2011, L 141/1 (hereinafter Regulation 492/2011). This Regulation repealed Regulation 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, O.J. 1968, L 257/2.
- 18.
The Directive, in its Article 7, establishes the different conditions to reside for workers and other economically active persons and for inactive citizens. Other provisions rely on this distinction: for example, economically active citizens can never become an unreasonable burden and be expelled on that basis (Article 14(4)(a)); can, under certain circumstances, have preferential (accelerated) access to permanent residence (Article 17); the Article 24(2) derogation to the right to equal treatment with regard to social assistance does not apply to them.
- 19.
- 20.
O’Brien 2016, p. 974.
- 21.
- 22.
Case 53/81, Levin [1982] EU:C:1982:105.
- 23.
Case 66/85, Lawrie-Blum [1986] EU:C:1986:284.
- 24.
Lawrie-Blum, supra n 23, para 17.
- 25.
Levin, supra n 22, para 17.
- 26.
Case 75/63 Unger, [1964] EU:C:1964:19.
- 27.
Lawrie-Blum, supra n 23, para 17.
- 28.
Case 139/85 Kempf [1986] EU:C:1986:223.
- 29.
Case C-14/09 Genc [2010] EU:C:2010:57, para 27.
- 30.
Case C-3/90, Bernini, EU:C:1992:89, para 16.
- 31.
Case C-357/89, Raulin, Opinion of AG Van Gerven, EU:C:1991:306, para 8.
- 32.
Joined cases C‑22/08 and C-23/08, Vatsouras and Koupatantze [2009] EU:C:2009:344, paras 25 e 30–31. Subsequent case law also confirms this stance. See in the field of non-discrimination on the basis of age Case C-432/14 O v Bio Philippe [2015] EU:C:2015:643.
- 33.
O’Brien et al. 2016, p. 16.
- 34.
Raulin, supra n 31, para 14.
- 35.
Kempf, supra n 28, para 15.
- 36.
Case 196/87 Steymann [1988] EU:C:1988:475 para 12. Steymann concerned free movement of services, but the Court analysed it also under the profile of free movement of workers.
- 37.
Case 300/84 van Roosmalen [1986] EU:C:1986:402, para 22. However, it should be noted that this case concerned social security coordination, a field characterised by a definition of worker partially different from that under Article 45 TFEU.
- 38.
Case 344/87 Bettray [1989] EU:C:1989:226, para 15. As noted by AG Fennelly in Birden, it would be unworkable to identify a ‘genuine’ worker only when there is no public intervention, as it “It would ignore the fact that, […], much apparently market-oriented economic activity depends on public subventions or contracts, the public provision of infrastructure, the public provision of trained labour, and so on, so that 'normal' market conditions, in this broader sense, are not easy to identify in the context of an individual case.” See Case C-1/97 Birden [1998] Opinion of AG Fennelly, EU:C:1998:262, para 38.
- 39.
- 40.
Case C-456/02 Trojani [2004] ECLI:EU:C:2004:488 paras 9–10.
- 41.
Case C-456/02 Trojani [2004] Opinion of AG Geelhoed, EU:C:2004:112, para 57, including the pocket money, see para 60.
- 42.
Trojani, supra n 40, paras 22–23.
- 43.
See Case C-159/90 Grogan [1991] EU:C:1991:378, para 17: a service is ‘economic’ if it is normally provided for remuneration. This is a highly debated issue which is outside of the scope of this chapter. See Koutrakos 2005, pp. 109 and 114; Odudu 2009, 228 and 231; Nic Shuibhne 2013, pp. 65–66 and 71–73.
- 44.
Ward 2009, p. 145.
- 45.
Case C-77/95 Züchner [1996] EU:C:1996:425. Ms. Züchner’s request for reimbursement of domiciliary assistance was turned down since the law only provided for refund when nobody within the same household could provide care for the invalid person. According to Mr. and Ms. Züchner this exclusion was discriminatory on the ground of sex in the field of social security, prohibited by Directive 79/7/EC, since care work is predominantly performed by women.
- 46.
Case C-317/93 Nolte [1995] EU:C:1995:438, paras 19–21.
- 47.
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. Article 2 identifies the personal scope of the Directive by referring to the ‘working population’. This concept also includes self-employed persons, jobseekers and those whose occupational activity has been interrupted because of the materialisation of the risks mentioned in the Directive itself (illness, accidents, involuntary unemployment). I am grateful to the anonymous reviewers for highlighting this point.
- 48.
As the Commission underlined, see Züchner, supra n 45, para 24. Remarkably, the national court had referred the case to the Court precisely to understand if the definition of worker could cover a person in Ms. Züchner’s situation, see case C-77/95 Züchner [1996] Opinion of AG Colomer, EU:C:1996:298, para 27.
- 49.
O’Brien 2016, p. 1664.
- 50.
See Züchner, supra n 45, para 15, emphasis added.
- 51.
Joined cases C-31/02 and C-502/01 Gaumain-Cerri and Barth [2004] EU:C:2004:413. O’Brien 2017, p. 151.
- 52.
As opposed to paid care work provided by persons outside the household.
- 53.
Joined cases C-31/02 e C-502/01 Gaumain-Cerri e Barth [2003], Opinion of AG Tizzano, EU:C:2003:649, paras 130, 132 e 140.
- 54.
Gaumain-Cerri and Barth, supra n 51, para 32.
- 55.
- 56.
O’Brien et al. 2016, p. 15.
- 57.
- 58.
O’Brien et al. 2016, p. 63.
- 59.
- 60.
As comparative empirical research shows: O’Brien et al. 2016, pp. 24–25; Bosio et al. 2019. These reports show that several Member States have introduced de facto hours or earning thresholds in their case-by-case administrative assessment that reverse the burden of proof for workers who perform activities below the threshold.
- 61.
Bosio et al. 2019, p. 8.
- 62.
Ibid.
- 63.
- 64.
- 65.
O’Brien 2016, p. 975.
- 66.
Eurofound 2017, p. 26.
- 67.
- 68.
Strban et al. 2020, p. 12. Data show that, compared to nationals, migrants and young persons are more likely to perform temporary work and women are more likely to perform part-time work. See https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Migrant_integration_statistics_-_employment_conditions#Self-employment. While these flexible working patterns do not necessarily entail destitution, they are more likely to yield lower salaries and precariousness and hence increase the risk of poverty (both in-work and out-of-work). The Covid pandemic has had dramatic effects on these segments of the labour market. Data show that among the most affected by the job loss due to the pandemic and lockdowns there are especially fixed-term workers, particularly young workers and women, who have been disproportionately affected by the lockdown. See Eurofound 2020, p. 9; 2021, p. 15. Moreover, marginalised and segregated minorities, such as Roma and Travellers, are more exposed to labour market marginalisation and inadequate access to welfare. These factors have had disproportionate effects during the Covid pandemic. See European Commission 2021, p. 15.
- 69.
- 70.
Jacqueson and Pennings 2019, pp. 68–69.
- 71.
Nic Shuibhne 2018, pp. 509–510.
- 72.
O’Brien 2016, pp. 974–975.
- 73.
O’Brien 2013, p. 1664.
- 74.
- 75.
International Labour Organisation 2018, p. xxix.
- 76.
Barbera 2003, p. 144.
- 77.
- 78.
Case C-325/09, Dias, EU:C:2011:498, para 39.
- 79.
On the contrary, ILO’s policy recommendations suggest to shift from policies focussed on remuneration to policies hinging on access to public services. See International Labour Organisation 2018, p. xliv.
- 80.
International Labour Organisation 2018, p. xxix.
- 81.
Provided that the perspective remains one where human activities need to be assessed only through economic lenses, which bears the risk of ‘commodification’ of human relationships, see Peebles 1997.
- 82.
Paz-Fuchs and Eleveld 2016, p. 52.
- 83.
- 84.
- 85.
International Labour Organisation 2018, p. 8.
- 86.
Fredman 2011, pp. 9 ff.
- 87.
Barbera 2003, p. 149.
- 88.
- 89.
O’Brien et al. 2016, p. 17.
- 90.
Ziegler 2011, p. 303.
- 91.
Case 197/86 Brown [1988] EU:C:1988:323, para 27.
- 92.
Bettray, supra n 38.
- 93.
Case 344/87, Bettray [1989], Opinion of AG Jacobs, EU:C:1989:113, paras 17 and 32.
- 94.
Bettray, supra n 38, para 5.
- 95.
Bettray, supra n 93, para 26.
- 96.
Ibid. para 34; Bettray, supra n 38, para 17.
- 97.
Bettray, supra n 93, para 33.
- 98.
- 99.
See e.g. Trojani, supra n 40, para 19.
- 100.
Nic Shuibhne 2013, p. 73.
- 101.
See submissions of the parties in cases Trojani, supra n 40; C-294/06, Payir [2009], EU:C:2008:36 (referred to and rejected by AG Kokott [2007] EU:C:2007:455, paras 35 ff).
- 102.
Trojani, supra n 41, para 55.
- 103.
The remaining of the ruling is then focussed on the free movement of citizens in general, which points to the exclusion from free movement of workers: Trojani, supra n 40, paras 31–46.
- 104.
Case C-316/13, Fenoll [2015] EU:C:2015:200.
- 105.
Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time, [2003] O.J. L 299/9. The definition of worker is the same as in free movement: see Case C‑428/09, Isère EU:C:2010:612, para 28; Fenoll, supra n 104, paras 37–39 and O’Brien 2017, p. 98.
- 106.
Fenoll, supra n 104, paras 5 e 12–14.
- 107.
Ibid. para 39.
- 108.
Respectively Case C-316/13, Fenoll [2014] Opinion of AG Mengozzi EU:C:2014:1753, para 43 and Bettray, supra n 93, para 32.
- 109.
Fenoll, supra n 104, para 41.
- 110.
Teleological interpretation is characteristic of labour law—Fenoll was a labour law case—since the scope of application of labour law is often defined on the basis of its function to protect the most vulnerable party to the relationship, that is the worker. See on this Risak and Dullinger 2018, p. 18; Costello and Freedland 2015, p. 2.
- 111.
It should be stressed that the concept and the existence of benefit tourism itself is highly debatable. See supra note 67.
- 112.
O’Brien et al. 2016, p. 15.
- 113.
Which is provided for, subject to conditions and limitations, by Article 21 TFEU. For an analysis of how the functional link has been superseded (or not), see Nic Shuibhne 2009.
- 114.
Fenoll, supra n 108, para 44. Menegatti explains this discrepancy differently: he argues that since in Fenoll at stake was a fundamental right (that to paid annual leave) or better a ‘an essential principle of EU social law (see also Max Planck, the Court decided to adopt a “more inclusive concept of worker”. See Menegatti 2020, p. 41.
- 115.
It should be noted that the Court held, in Martinez Sala, that there is no single European definition of worker in EU law (Case C-85/96, Martínez Sala, EU:C:1998:217, para 31) and that it varies across different areas of EU law. However, in free movement law the definition of worker is uniform and has a European meaning, which cannot be altered unilaterally by Member States (Case 66/85, Lawrie-Blum, EU:C:1986:284, para 16). I am grateful to the anonymous reviewers for highlighting this point.
- 116.
O’Brien 2008, pp. 1128–1129.
- 117.
Johnson and O’Keeffe 1994, p. 1317.
- 118.
O’Brien 2008, p. 1117.
- 119.
Bettray, supra n 93, para 33.
- 120.
See O’Brien 2008, pp. 1128–1129.
- 121.
See also para 33 AG Jacobs’s Opinion in Bettray “Although the working conditions in the undertakings follow as closely as possible working conditions on the open market, that is done for retraining purposes; the goods produced and the work done are carefully circumscribed so as not to compete improperly with open market goods and work”.
- 122.
Fenoll, supra n 108, para 42.
- 123.
O’Brien 2017, p. 98.
- 124.
Fenoll, supra n 104, para 40.
- 125.
This argument could have been applied in Bettray thirty years before. Besides, it is precisely the same argument that in Bettray had the effect to exclude the claimant from the definition of worker, i.e. the fact that the job had been created for the worker and to give value to his activities.
- 126.
- 127.
Bell 2016, p. 205.
- 128.
- 129.
As Somek underlined, European integration is characterised by the mantra of the ‘not merely’, in the sense that it is often stressed that it is not solely about the economy but also about the social. See Somek 2011, p. 7.
- 130.
Levin, supra n 22, para 15, emphasis added.
- 131.
- 132.
It is not possible here to mention all authoritative literature which discussed this issue. For a thorough analysis of the interaction between ‘the market and the social’, see Garben 2017. Scharpf has discussed the effect of negative integration on welfare systems and social laws of the Member States. See Scharpf 2010.
- 133.
De Burca 1993, p. 299.
- 134.
On the ‘humanising’ role of market citizenship, see Nic Shuibhne 2010, p. 1610.
- 135.
International Labour Office 1956, para 49, Recchi and Favell 2009, p. 10. Under the theory of international trade, labour mobility should lead to wage convergence, dependent on the level of trade exchanges between States. Being a partial substitute for trade in products, labour mobility produces also losers and winners from trade. See Krugman et al. 2009, pp. 157 and 170, International Labour Office 1956, para 96, Barthe 2017, p. 121. On the two different approaches (orthodox or Ricardian and heterodox Keynesian) or to the relationship between free trade, labour migration and wages, see Schiek et al. 2015, pp. 22–23.
- 136.
- 137.
- 138.
Eger and Brücker 2012, pp. 168–169 and 176.
- 139.
This social dimension is also reflected in the Preamble of the TEU, which refers to the European Social Charter of 1961 and to the Community Charter of Fundamental Social Rights of Workers of 1989. The latter is not legally binding, but it starts by referring to the freedom of movement for workers.
- 140.
See however AG Jacobs’ Opinion in Bettray, at para 33, where he argued that social work, precisely because of its social nature, did not contribute to the economic growth of the EU.
- 141.
As it is possible to deduce also from its context, since it is within the Title II, ‘Freedoms’, rather than Title IV, ‘Solidarity’.
- 142.
- 143.
de Witte 2015, p. 7.
- 144.
See case 32/75 Cristini [1975] EU:C:1975:120, para 12. More recently, see case C-181/19 Jobcenter Krefeld [2020] EU:C:2020:794, paras 41–42. See also Ellis 2003, p. 642, Spaventa 2007, p. 28; O’Leary 2008, p. 170 and case law cited in footnotes 10 and 11. These cases show the broad understanding of the notion of ‘social advantages’ under Article 7(2) Regulation 492/2011 (Article 7(2) of Regulation 492/2011 corresponds to Article 7(2) Regulation 1612/68).
- 145.
And this was especially true before citizenship was established. This is one of the key arguments in Peebles 1997.
- 146.
O’Sullivan 2020, pp. 33–34.
- 147.
Ward 2009, p. 147.
- 148.
In the initial years of citizenship case law it seemed that the relevance of economic activity was dimming. In those years, the Court adopted a generous approach towards Union citizens’ rights: economically inactive citizens could have access to social solidarity insofar they did not become an ‘unreasonable burden’ on Member States’ finances and the conditions to reside were subject to a thorough proportionality assessment based on their personal circumstances, so that the relevance of the link with economic activity and the condition to own sufficient resources seemed to be greatly reduced. See Case C-85/96, Martínez Sala, EU:C:1998:217, paras 60–64 and Case C-184/99, Grzelczyk, EU:C:2001:458, para 44. See Spaventa 2008, p. 23. This evolution was not, however, unproblematic and the literature has criticised it for the risks it entailed in terms of viability of national welfare systems. See, among others, Hailbronner 2005.
- 149.
- 150.
Somek 2011, p. 4.
- 151.
Fredman 2011, p. 13.
- 152.
To expand, through the Charter, the scope of application of free movement of workers also triggers question of competence of the Union under Article 51 CFREU. See Barbera 2003, pp. 152–153.
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Ristuccia, F. (2023). The Status of Workers in EU Free Movement Law: A Difficult Balance Between Equality and Economic Integration. In: Amoroso, D., Marotti, L., Rossi, P., Spagnolo, A., Zarra, G. (eds) More Equal than Others?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-539-3_7
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