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This section will analyse the rights enjoyed by third country nationals under Community Law on free movement themselves, independently of any family relationship with a migrant national of a Member State. This section will not examine the rights granted to third country nationals as a result of being relatives of migrant nationals of a Member State. Such rights will be analysed in section B of this chapter.3

1 - Rights in the Framework of the Free Movement of Workers a) The law as it stands

(i) Contrast between rights of Member States' nationals and rights of third country nationals residing in the Union

The rights enjoyed by third country nationals under EC Law on free movement of persons contrast sharply with those enjoyed by nationals of a Member State. This is particularly clear as far as freedom of movement of workers is concerned.4

According to the relevant rules in force, and to their interpretation by the Court of Justice, nationals of a Member State have a wide range of rights protecting their freedom to migrate to another Member State to work there. Some EC Treaty provisions and several instruments of secondary Community Law assure and protect that freedom of movement.

As far as workers are concerned, this freedom is regulated primarily by Article 48 of the EC Treaty, which provides that

"1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employ­

ment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

3 In the beginning of that section reference will also be made to the issue of reverse discrimination.

4 For an overview of the rights enjoyed by nationals of Member States within the framework of free movement of workers see, e.g., Johnson, Esther & O'Keeffe, David "From discrimination to obstacles to free movement: Recent developments concerning the free movement of workers 1989-1994", CMLRev.

Vol.31, 1994, No.6, pp. 1313-1346; Lasok, D. & Bridge, J.W., Law and Institutions o f the European Union, London, Butterworths, 1994, pp.435-453; Mattera, A. "La libre circulation des travailleurs à l'intérieur de la Communauté européenne”, RM UE, 1993, No.4, pp.47-108; Steiner, J., Textbook on EC Law, 4th.ed., London, Blackstone, 1994, pp.208-230; Weatherill, S. & Beaumont, P., EC Law - The Essential Guide to the L egal Workings o f the European Community, London, Penguin, 1993, pp.481-502.

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(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service."5

Articles 49, 50 and 51 of the EC Treaty elaborate further on the activities to be developed to attain a true freedom of movement of workers.

Moreover, these Treaty provisions were implemented by several instruments of secondary Community Law. These instruments also developed additional rights for nationals of Member States.

Regulation 1612/68, for example, establishes the general framework for the development of free movement for workers within the Community.6 It forbids discrimination in a wide range of aspects related to the migration of nationals of one Member State to work in another Member State. Its detailed rules prohibit discrimination in the access to employment in a Member State by a worker who is national of another Member State.7 He or she must not be discriminated against either as regards any conditions of employment or work,8 "social and tax advantages",9 access to training in vocational schools and retraining centres.10 Furthermore, the worker must be assured equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto - including the right to vote and to be eligible for the administration and management posts of trade unions.11 He or she also has "the right of eligibility for workers' representative bodies in the undertaking" where he or she works.12 Moreover, he or she must not be discriminated against as regards rights and benefits "in matters of housing, including ownership of the housing he [or she] needs."13 In addition, to facilitate the worker's movement to another Member State, the worker's close relatives have the right to move with him or her to that country.14 Other relatives shall have their admission facilitated.15 The relatives with the right to be admitted who may also work in the host

5 Emphasis added. This Article was not amended, either by the European Single Act, or by the Treaty on European Union.

6 Regulation 1612/68/EEC of the Council on freedom of movement for workers within the Community, OJ L 257/2 of 19/10/68, later amended.

7 Articles 1 to 6 of Regulation 1612/68, quoted supra.

8 Idem, Article 7(1).

9 Ibidem, Article 7(2).

10 Article 7(3).

11 Article 8.

12 Idem.

13 Article 9.

14 Article 10(1), under the conditions established in Article 10(3). These conditions were interpreted in a manner that protects the worker and his or her family in case 249/86, Commission v. Germany, (Re Housing Conditions) [1989] ECR 1263, explained in section B of chapter 8.

15 Provided they are dependent on the worker or are living with him or her when the worker moves to another Member State - Article 10(2).

Member State,16 and the children of worker’s family, if residing in the host Member State, may have access to educational and vocational training courses in conditions similar to those of the children of national workers.17 Finally, Regulation 1612/68 also includes special provisions for clearance of vacancies and on applications by workers who are nationals of one Member State for employment in another Member State.18

Other instruments of secondary Community Law complement this Regulation.

Directive 68/360, for example, provides detailed rules for the abolition of restrictions concerning on movement and residence within the Community of workers and members of their families.19 Directive 64/221 regulates the limitations mentioned in Article 48(3), by coordinating measures concerning the movement and residence of foreign nationals that are justified on the grounds of public policy, public security or public health.20 Regulation 1251/70 establishes, under certain conditions, the right of the workers to remain in the territory of a Member State after having been employed there.21 Moreover, Regulation 1408/71, regulates the application of social security schemes to employed persons and their relatives moving in the Community. It is meant to diminish the eventual negative effects that freedom of movement may have on the social security rights of migrant workers and their families. It forbids discrimination on the grounds of nationality against migrant nationals of a Member State who are covered by the Regulation. It also arranges for the aggregation for social security purposes of periods of insurance, residence and employment.22

These instruments, considered as a whole, provide a broad range of rights to nationals of Member States who migrate as workers to another Member State.

Nevertheless these rights have been expanded even more, namely as a result of two factors.

W First, the Court of Justice has taken a rather liberal attitude in this field. In general terms the Court has adopted a doctrine that is quite protective of the rights of migrant workers who are nationals of a Member State. The tendency of the Court has been to

16 Article 11.

17 Article 12.

18 Articles 13 to 23 of Regulation 1612/68, quoted supra.

19 Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers and members of their families, OJ L 257/13, of 19/10/68, later amended.

20 Council Directive 64/221/EEC on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, OJ 56/850 of 4/4/64, later extended in scope - see OJ L 14/14, of 20/1/75. On the judicial protection to be secured to persons covered by this Directive, namely third country national relatives of a migrant national of a Member State, see joined cases C-297/88 and C-197/89, Massam Dzodzi v. Belgian State, [1990] ECR I- 3763.

21 Regulation (EEC) No 1251/70 of the Commission on the right of the workers to remain in the territory of a Member State after having been employed in that State, OJ L 142/24 of 30/6/1970.

22 Regulation (EEC) 1408/71 of the Council on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, OJ L 149/2 of 05/07/71; latest consolidated version in OJ C 325/1, of 10/12/92 (initially applied only to employed persons and their families, it was extended to self-employed persons and members of their families by Regulation (EEC) 1390/81 of the Council, OJ L 143/1, of 29/5/1981).

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"construe broadly"23 Community rules granting rights related to the free movement of workers, while re^tnctively^nterpreting Community rules_allowing for the limitation^of such rights. Only a few examples of this tendencylieed tol>e recalled at this instance.

Some other examples will be mentioned later in this chapter. The Court has stated, for example, that rights to free movement are conferred directly by the Treaty provisions.

Secondary Community Law implementing this provision does not create new rights, but merely gives closer articulation to the Treaty provisions, by determining the scope and detailed rules for the exercise of the rights directly conferred by the Treaty.24 Furthermore, the Court ruled that the notion of a "worker" used by EC Law is not to be defined by national legislation, but has a Community meaning.25 Thus, the Court was itself able to interpret that notion and has done so in quite a liberal manner. It has considered, for example, that a part-timer, in spite of having a salary below the minimum subsistence level and having to rely on public financial assistance of the host Member State, was nevertheless a worker for Community Law purposes.26 Moreover, according to the Court of Justice, the concept of public policy, which may constitute grounds for limiting freedom of movement, is to be interpreted restrictively.27 Likewise, the Court of Justice restricted substantially the material scope of the reservation clause of Article 48(4), which excluded in generic terms employment in the public service from the provisions on free movement of workers.28 Furthermore, a protective doctrine of the position of migrant workers who are nationals of Member States has usually been applied by the Court as far as instruments of secondary Community Law are concerned. This has occurred on various occasions. The interpretation of the material scope of Regulation 1408/71, on application of social security schemes to migrant employed persons and their relatives, is one of such cases.29 Another well-known example concerns the interpretation of the concept of non­

discrimination on social advantages mentioned in Article 7(2) of Regulation 1612/68. The Court has interpreted this concept in a very broad manner.30

23 See, e.g., case 139/85, Kempf v. Staatssecretaris van Justitie (19861 ECR 1741, and case 316/85, Lebon [1987] ECR 2811, paragraph 23.

24 Case 48/75, Procureur du Roi v. Royer [1976] ECR 497, paragraphs 23 and 28.

25 Case 53/81, Levin v. Staatssecretaris van Justitie [1982] ECR 1035, paragraph 11.

26 See case 139/85, quoted supra, paragraph 14.

27 Case 41/74, Van Duyn v. Home Office [1974] ECR 1337, paragraph 18; and case 30/77, R v.

Bouchereau [1977] ECR 1999, paragraph 33.

28 The Court restricted this reservation to "posts which involve direct and indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities". See Case 149/79, Commission v. Belgium, [1980] ECR 3881, at 3900. See also the opinion of Advocate General Mayras in case 152/73 Giovanni Maria Sotgiu v.

Deutsche Bundespost, [1974] ECR 153. This opinion influenced very much the definition given by the Court in the former case.

29 See Wyatt, D. & Dashwood, A. et al., European Community Lawt 3rd. ed., London, Sweet & Maxwell, chapter 11; and Steiner, op.cit., chapter 21.

30 See below, section B. Another example is case 249/86, Commission v. Germany, quoted supra and explained in section B of chapter 8. In that case the Court restrictively interpreted Article 10(3) of Regulation 1612/68, which requires that for the family members of a migrant worker to install themselves with him or her in another Member State, the worker must have available for them "housing considered as normal for national workers in the region where he is employed".

Secondly, rights related to freedom of movement for nationals of a Member State have been further expanded by instruments not directly related to the free movement of workers. Community rules on the free movement of services and on the freedom of establishment develop further the rights that nationals of Member States have to migrate to work in another Member State. Likewise, the three Directives adopted in 1990 on the right of residence of students, of pensioners and of other nationals of Member States, increase the possibility for nationals of Member States to move within the Community.31 * Finally, after the entry into force of the implementing instruments of the relevant rules of the Treaty on European Union, migrant nationals of a Member State may even vote and be elected in European and local elections in the host Member State.

The conclusion is that nationals of Member States who move to another Member State are, under Community Law, positioned in the host Member State in a situation very similar to that of the nationals of the latter country. They enjoy there a legal status that includes a wide range of rights, particularly as far as the social and economic areas are concerned.

The legal status of nationals of one Member State can in this respect be compared to that of third country nationals residing in Member States. What rights of freedom of movement do third country nationals enjoy, independently of any relationship with a national of a Member State?

The answer is none.

Third country nationals residing in Member States have no rights related to the freedom of movement of persons, independently of a family relationship with a migrant national of a Member State, or of the fact that they work for an EC enterprise providing services in another Member State.

(ii) Legal basis for the exclusion of third country nationals from the personal scope of freedom of movement of workers

Article 69(1) of the Treaty of the European Coal and Steel Community and Article 96 of the European Atomic Energy Community, make explicit provision that the free movement of workers that they envisage is for nationals of Member States.32 j n the meantime, in the Treaty of the European Economic Community, the first paragraph of Article 48 established that freedom of movement "for workers” was to be secured "by the end of the transitional period at the latest". According to its paragraph 2, such freedom of

31 Sec the following Directives, analysed infra in section B: Council Directive 93/96/EEC of 29/10/1993 on the right of residence for students, OJ L 317/59 of 18/12/1993; Council Directive No. 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity, OJ L 180/28, of 13/7/90; and Council Directive No. 90/364/EEC on the right of residence for persons who do not enjoy this right under other provisions of Community Law, OJ L 180/26, of 13/7/90.

Although in other Articles of the same treaties general reference is made to "workers"; for instance in the field of wages or health and safety. See Articles 46,48, 56,68 and the very Article 69(4) of the ECSC Treaty and Articles 2 and 30, as well as 97,148 and 196 of the EAEC Treaty.

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movement entails the abolition of any discrimination based on nationality "between workers of the Member States”.33 34 * 36

Meanwhile, several instruments of Community Law, adopted to implement Article 48 of the E(E)C Treaty, reserve for nationals of the Member States only, the rights to the free movement of workers.

That is the case of Regulation 1612/68 on the freedom of movement for workers within the Community and of Council Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers and members of their

families.34 Both these instruments put the close relatives of the workers who are nationals of a Member State under the protection of Community Law, regardless of the nationality of the former. Thus, third country nationals who are relatives of migrant workers nationals of a Member State do enjoy some rights of free movement when joining the latter in their movements within the Community. Nevertheless, under the instruments already referred to, workers who are nationals of third countries and reside in a Member State, do not, themselves, have the right to move to another Member State and work and reside there.

However, certain third country nationals do have Community Law rights under Regulation 1408/71, on the application of social security schemes to employed persons, self-employed persons and their relatives moving in the Community.35 This regulation was adopted in pursuance of Article 51, which envisages the enactment of "measures in the field of social security as are necessary to provide free movement of workers".36 The Regulation covers not only workers who are nationals of a Member State and the members of their families (even if they are third country nationals), but also covers workers who are stateless persons or refugees, as well as the members of their families (including their survivors), if they are residing in a Member State.37 38

In the Meade case,38 the European Court of Justice held admissible the exclusion of third country nationals from the scope of the EC Treaty rules on free movement of workers, namely ArticIe 487 This was~rfone in an implicit but absolutely clear manner. This judgment is the main reason for sustaining that, under the EC Treaty, the free movement of workers is limited to nationals of Member States. It leaves no doubts as to the state of the law regarding the issue. However, the Court did not contribute to the discussion with any arguments. From a theoretical perspective, therefore, the discussion remains open.

33 Emphasis added.

34 See Article 1 of Regulation 1612/68/EEC of the Council on freedom of movement for workers within the Community, OJ L 257/2 of 19/10/68, later amended; and Article 1 and 2 of Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers and members of their families, OJ L 257/13, of 19/10/68, later amended. See also Article 1 of Council Directive 64/221/EEC on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, OJ 56/850 of 4/4/64 - later extended in scope, see OJ L 14/14, of 20/1/75,

33 See Article 2(1) of Regulation 1408/71, quoted supra.

36 The same Article also refers that "to this end [the Council) shall make arrangements to secure for migrant workers and their dependants: (...) b) payment of benefits to persons resident in the territories of Member States",

37 See Article 2(1) and (2) of the same Regulation, quoted supra.

38 Case 238/83, Caisse d’Allocations Familiales de la Région Parisienne v. Mr. and Mrs. Richard Meade, [1984] ECR 2631-9. See in particular 2638-9.

b) Discussion on the personal scope of Article 48 of the EC T reaty (i) general overview

The legal literature was, and still is, split on the precise personal scope of Article

The legal literature was, and still is, split on the precise personal scope of Article