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I. Free Movement of Persons, Recognition of Qualifications, and Working Conditions

Published online by Cambridge University Press:  17 January 2008

Karl Newman  and
Julian Lonbay
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Extract

The European Commission has adopted an Action Plan to speed up the full implementation of the Single European Market. As part of its strategy the Commission has launched a stream of cases under Article 169 of the EC Treaty seeking to ensure the implementation of Community law in the fields covered by this note, which takes up and explains some of them. The first case is Commission v. Belgium where the European Court found that the Belgian rules, which effectively excluded those searching for work from Belgium after three months, contravened the job-seekers rights derived from Article 48 as interpreted in Antonissen. The Antonissen rights have also been extended to Turkish workers lawfully resident in Germany. Germany found itself condemned for failing to implement directives

Type
Current Developments: European Community Law
Information
International & Comparative Law Quarterly , Volume 47 , Issue 1 , January 1998 , pp. 224 - 231
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. The Action Plan sets out priority areas for enforcement and completion of the Single Market. A copy of the Action Plan is available on the European Commission's World Wide Web (WWW) Server at the following Universal Resource Locator (URL) http://europa.eu.int/comm/dg15/en/update/action/plan.htm.

2. A series of papers on themes covered by this note have been published. The High Level Group on Free Movement of Persons has reported (18 Mar. 1997) and the Green Paper “The Obstacles to Transnational Mobility” was published in 1996. These are available on the Commission's WWW server at URL http://europa.eu.int/en/comm/dg22/ivhpen.html and http://europa.eu.int/coinni/dg15/eii/people/hlp/surnm.htm respectively.

3. Case C–344/95 Commission v. Belgium [1997 E.C.R. 1–1035.Google Scholar

4. Case C–292/89 R v. Immigration Appeal Tribunal, ex p. Antonissen [1991] E.C.R. 1–745Google Scholar: see Lonbay (1992) 41 I.C.L.Q. at 715.Google Scholar

5. Case C–171/95 Recep Tetik v. Land Berlin (23 01. 1997). This was achieved by a wide interpretation of Decision No.1/80 of the Council of Association of the Association Agreement between the EC and Turkey.Google Scholar

6. Directives 90/364/EEC and 90/365/EEC.

7. Case C–96/95 Commission v. Germany [1977] E.C.R. 1–1653.Google Scholar

8. http://europa.eu.int/comm/dg15/en/index.htm.

9. Case C–278/94 Commission v. Belgium [1996] E.C.R. 1–4307.Google Scholar

10. Reg.1612/68, Art.7(2).

11. Case C–415/93 Union Royale Belge des Sociétés de Football Association v. Bosman [1995] E.C.R. 1–4921.Google Scholar

12. Case C–177/94 Lloyd's of London v. Gianfranco Perfili [1996] E.C.R. 1–161.Google Scholar

13. Case C–323/95 Hayes v. Kronenberger GmbH [1997] E.C.R. 1–1711.Google Scholar

14. See Commission Communication 88/C 72/02 (1988) O.J. C72/2.Google Scholar

15. Case 66/85 Lawrie Blum v. Land Baden Wülmemberg [1986] E.C.R. 2121.Google Scholar

16. Case C–173/94 Commission v. Belgium [1996] E.C.R. 1–3265Google Scholar: Case C–290/94 Commission v. Greece [1996] E.C.R. 1–3285Google Scholar: Case C–273/93 Commission v. Luxembourg [1996] E.C.R. 1–3207.Google Scholar

17. Case C– 173/94, idem. para. 19; Case C–290/94, idem. para.36; Case C–473/93, idem. para.47.

18. C–473/94. idem. paras.44–46.

19. Idem. paras 32–36.

20. Idem. para.31; the “special relationship of allegiance to the State” was not invocable here. Para.2 of all three cases, supra n.16.

21. Case C–55/94 Reinhard Gebhard v. Consiglio dell'ordine degli Avvocati e Procuratori di Milano [1995] E.C.R. 1–4165.Google Scholarnoted by Lonbay at (1996) 33 C.M.L.Rev. 1073.Google Scholar

22. Idem. para.37. citing Case C–19/92 Kraus [1993] E.C.R. 1–1663.Google Scholar

23. See Lonbay, J.. “Lawyers Bounding over the Borders” (1996) 21 E.L.Rev. 50 for a review of the proposal.Google Scholar

24. Case C–101/94 Commission v. Italy [1996] E.C.R. 1–2691.Google Scholar

25. The Commission has issued a reasoned opinion (under Art.169) to Belgium for similar restraints with regards to the Belgian Patent Office. IP/97/695 (25 July 1997).

26. In Case C–70/95 Sodemare Sa et al. v. Regione Lombardia (17 June 1997) available on the ECJ's WWW at URL http://europa.eu.int/jurisp. The Commission has recently issued a Reasoned Opinion (under Art. 169) to Spain for requiring non-residents purchasing property to use a Spanish notary (IP/97/695 (25 July 1997)).

27. Case C–3/95 Reisebüro Broede v. Gerd Sandker [1996] E.C.R. 1–6511.Google Scholar

28. The ECJ did not follow (as urged by the Advocate General) its broader precedent regarding indirect discrimination set out in the O'Flynn case: C–237.94 [1996] E.C.R. 1–2617, esp. paras.18–21.Google Scholar

29. (1997) O.J. C76/2, Notice 97/06/02. The Convention establishes a European Police Office (EUROPOL) and the Protocol allows for interpretation of the Convention by the ECJ via preliminary rulings: (1996) O.J. C299/1.Google Scholar

30. Joint Action under Art.K3 (1996) O.J. L342/1.Google Scholar

31. 1971st Council Meeting—Justice and Home Affairs—Brussels, 28/29 Nov. 1996, Press Release 96/346. Date: 1996–11–28. The formal decision was adopted at the Feb. 1997 General Affairs Council.

32. Each State is contributing the data (1996) O.J. L.342. The Europol Drugs Unit is also co-ordinating the profiling of the chemical compositions of drugs (1996) O.J. L.322.Google Scholar

33. (1996) O.J. C313/11.Google Scholar

34. Press release 7813/96 (June 1996). The recommendation was later adopted in two parts: harmonising means of combating illegal immigration and illegal employment and improving the means of control (1996)Google ScholarO.J. C5/1; and the recommendations on combating the illegal employment of third-country nationals (1996) O.J. C304/1.Google Scholar

35. (1996) O.J. C80/2.Google Scholar

36. Certain categories of persons are excluded, such as family members and students and those who are not “long-term residents”.

37. For fuller treatment see Peers, S.. “Undercutting Integration: Developments in Union Policy on Third-country Nationals” (1997) 22 E.L.Rev. 76.Google Scholar

38. Financial Times, 31 07 1997Google Scholar; Agence Europe 7027 (31 07 1997).Google Scholar

39. E.g. the External Frontiers Convention is still blocked.

40. Council Reg. (EC) No.2317/95 of 25 Sept. 1995 determining the third countries whose nationals must be in possession of visas when crossing the external frontiers of the member States (1995) O.J. L234/1.Google Scholar

41. Case C–392/95 European Pariiament v. Council of the European Union (10 06 1977) available on the ECJ's WWW. supra n.26.Google Scholar

42. Art.2(15) of the Treaty of Amsterdam which will insert a new Title IIIa into the Treaty of Rome: “Visas, asylum, immigration and other policies related to the free movement of persons”.

43. See (1995) 44 I.C.L.Q. 705Google Scholar and (1992) 41 I.C.L.Q. 718.Google Scholar

44. Directive 94/45/EC on the establishment of works councils or similar procedures for the purpose of consulting employees in Community-scale undertakings and Directive 96/34/EC on parental leave.

45. Directive 93/104/EEC on certain aspects of the organisation of working time (1993) O.J. L307/18.Google Scholar

46. Case C–84/94 UK v. Council [1996] E.C.R. 1–5755.Google Scholar

47. There are a series of derogations to the main rights enshrined in the Directive. These were secured largely by the UK during the negotiations regarding the Directive.

48. Lonbay, (1990) 39 I.C.L.Q. 704, 706.Google Scholar

49. Directive 90/270/EEC on the minimum safety and health requirements for work with display screen equipment (1990)Google ScholarO.J. L156/14 described in Lonbay (1992) 41 I.C.L.Q. 212.Google Scholar

50. Cases C–74/95 and CM29/95 Criminal Proceedings v. X. [1996] E.C.R. 1–6609.Google Scholar

51. Art.2(c) of Directive 90/270/EEC.

52. The ECJ refused to answer this precise question as the Italian prosecutors could not be considered a court or tribunal within the meaning of Art. 177 EC

53. Case C–91/92 Paola Faccini Dori v. Recreb Srl [1994] E.C.R. 1–3325.Google Scholar

54. The judgment cites its ruling in Case 80/86 Kolpinjhuis Nijmegen [1987] E.C.R. 3969, and further strengthened it by referring to Art.7 of the European Human Rights Convention.Google Scholar

55. Cf. Case C–68/95 Criminal proceedings against Luciano Arcaro [1996] E.C.R. 1–4705.Google Scholar

56. Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (1997) O.J. L18.Google Scholar

57. Case C–216/94 Commission v. Belgium [1995] E.C.R. 1–2155Google Scholar; C–365/93 Commission v. Greece [1995] E.CR. 1–499. Greece and Belgium have had additional Art.169 actions launched against them for failing to comply with these judgments: IP/96/1230 (1996–12–20).Google Scholar

58. Directive 89/48 EEC (1989) O.J.L19/16.Google Scholar

59. For general information on the implementation of this Directive for Lawyers see the Web site of the Institute of European Law of the University of Birmingham at http://ww.iel.bham.ac.uk/.

60. “The Commission has decided to pursue infringement procedures against Greece (two cases), Spain (two cases), Portugal, Italy, France, Germany and Belgium for violations of Community law concerning the freedom of establishment and the freedom to provide services in the case of professions the exercise of which is dependent on qualifications (diplomas and experience).” http://europa.eu.int/comm/dgLS/en/people/infr/L 181.htm. The actions include that against France for creating obstacles to the free movement of lawyers.

61. COM(96)46 (15 Feb. 1996).

62. COM(96)92 (8 Feb. 1996).

63. See Lonbay, (1992) 41 I.C.L.Q. 212, 215.Google Scholar

64. Case C–164/94 Georgios Aranitis v. Land Berlin [1996] E.C.R. 1–135.Google Scholar

65. The following analysis follows that used in Lonbay, J., “The Mutual Recognition of Professional Qualifications in the EC”, in Hodgin et al., Professional Liability: Law and Insurance (1996) Chap.1.Google Scholar

66. As Advocate General Léger stated, the Directive should not be used to “turn truth upside down by allowing persons who do not possess a certain diploma to make use of a diploma which they do not have”: supra n.64, at para.45.

67. Report of the bearing: Sitzungsberichi, pp.2–3.I am grateful to Alex Bosch for translating this for me.Google Scholar

68. Supra n.64, at para. 23.

69. Idem, paras 30–32.