The ECJ has utilised case law in order to add meaning to freedom of movement of workers. The concept of objective justification was put into practice in the case of Martinez Sala vs Freistaat Bayern ECR 1 2691 [1998]1 (Bernard, 2007, 68). The plaintiff was a Spanish citizen who had been living in Germany for over three decades. The latter person has stopped working at the time of the case and was requesting for social assistance. It was found that this individual had the right to reside freely in any territory of the European Union as guaranteed by article 39 of the Treaty (Chalmers, 2006, 45)2. The Union also provides that a person living in another member state is entitled to the receipt of social service allowance. Although Martinez was no longer a permanent resident, her position as an EU citizen gave her the right to receive this assistance. This therefore illustrates objective justification for citizens.
In terms of imperative requirements, ECJ case law provides that member states must move beyond the economic purposes and consider the social and human rights issues as well. In other words, the freedom of workers to move is an imperative requirement irrespective of the nature of work i.e. full time or part time, the reasons behind deciding to engage in employment and the nature of assistance one would be entitled to (ETUC, 20005, 41)3.
Extent to which free movement of workers is now a legally feasible option
The movement of people freely within member states of the EU is a fundamental right. However, restrictions and subjectivity to interpretations may be hampering this process and a lot is yet to be achieved practically. In terms of subjectivity of interpretation, three major issues stand out (Vaughan, 20003, 203)4. First, the problem of provision of social services has been identified as an obstacle to this freedom. The EU member states have very diverse social service systems that are dependent on countries’ histories. This means that workers who may have grown accustomed to certain social services in their original countries may find it hard to adjust to different ones. This may even prevent some from taking up economic opportunities in desirable nations (Hartley, 2007, 345)5. Secondly, taxation has been cited as another obstacle to the freedom of movement of workers.
Fiscal harmonization of taxation systems within member states is imperative. Sometimes, workers can be subjected to double taxation and this may cause them to seek legal redress (Mather, 20005, 736)6. Additionally, some taxation systems for foreign EU workers have been discriminatory especially for subordinates who do not go through the same procedures that natives go through. Lastly, another big challenge to mobility is the mutual recognition of training from member states (Lunstrom, 1996, 57)7. Particular emphasis should go to diplomas because these have caused a lot of discrepancies. Workers who acquired their training in a different member country have had problems providing and justifying these accomplishments to their potential employers.
Freedom of movement of workers in the EU is also going through a difficult hurdle of dealing with restrictions imposed by older members. Countries like France and Italy still impose restrictions on certain EU nationals who may wish to enjoy the benefits of working in those host nations but may not be able to do so in accordance with these regimes (ETUC, 2005, 17)8. Although these older countries have stated that they will lift their sanctions, workers have to sit around and wait for those decisions to be made. Member states who have lifted restrictions have also been raising concerns about the economic effects of an inflow of migrants from other nations. Some have added that this could cause wages to go down. Although evidence indicates that mostly positive results have emanated from lifting restrictions because economic enhancements have been reported in recipient countries.
References
ETUC (2005). Towards free movement of workers in an enlarged EU. ETUC committee meeting in Brussels.
Lundstrom, K. (1996) Family life and the freedom of movement of workers in the EU. Oxford, OUP.
Hartley, T. (2007). Foundations of EC law. Oxford, OUP.
Chalmers, D. (2006). EU law: materials and text. NY: Cambridge Press.
Bernard, C. (2007). Substantive EU law. Oxford, OUP.
Vaughan, D. (2003). Law of the EU. Oxford, OUP.
Mather. J. (2005). Court of justice and the EU citizen. European law journal, 11(6). 736.
Footnotes
- Bernard, C. (2007). Substantive EU law. Oxford, OUP.
- Chalmers, D. (2006). EU law: materials and text. NY: Cambridge Press.
- ETUC (2005). Towards free movement of workers in an enlarged EU. ETUC committee meeting in Brussels, 5th December 2005 report.
- Vaughan, D. (2003). Law of the EU. Oxford, OUP.
- Hartley, T. (2007). Foundations of EC law. Oxford, OUP.
- Mather. J. (2005). Court of justice and the EU citizen. European law journal, 11(6). 736.
- Lundstrom, K. (1996) Family life and the freedom of movement of workers in the EU. Oxford, OUP.
- ETUC (2005). Towards free movement of workers in an enlarged EU. ETUC committee meeting in Brussels.