Equal treatment for migrants under community law

Abstract

In this thesis, dealing with Equal Treatment for Migrants under Community Law, I shall be tackling the European Community's legislative framework regulating the fundamental principle of non-discrimination on grounds of nationality. Article 6 of the EC Treaty is the main Community provision which highlights in general terms the principle of non-discrimination based on nationality. This main Treaty provision shall be analysed in great detail m Chapter One of this thesis. Then, apart from this general provision, the fundamental principle of non discrimination has also been safeguarded by means of the insertion of various other more specific Treaty provisions including, Article 48(2) EC in the case of migrant workers; Article 52(2) EC with regards to the right of self-employed EU workers to establish themselves in any one of the Member States of their choice; as well as, Article 60(3) EC covering persons providing services temporarily in another Member State. Further safeguards to promoting the mobility of workers and the exercise of equal treatment in their respect is also provided for by means of the mutual recognition of qualifications referred to in Article 57 EC, as well as in a number of directives which have been adopted pursuant to Article 57. Besides examining these Treaty provisions in some detail, reference shall also be made to various Community secondary legislation which have been adopted throughout the years, providing further safeguards in particular specific. instances. The most important in this respect is certainly Regulation 1612/68, relating to the free movement of workers within the Community. This Regulation covers a multitude of areas concerning the free movement of workers, seeking to safeguard such principle of non-discrimination in their respect with regards to employment, social and tax advantages, access to training in vocational schools and retraining centres, trade union rights, housing, as well as extending the principle to cover also the members of the workers' families, so that the whole of the family may truly be said to become integrated in the host country. This Regulation shall be examined thoroughly in Chapter Two. Furthermore, the European Community also sought to establish and ensure such equality of treatment within the ambit of social security. To this end, reference shall be made to Article 51 of the EC Treaty, as well as to Regulation 1408/71 which contains in it several detailed rules relating to the application of social security schemes to migrant workers and their families. However, we shall also be realising that such freedom of movement and thus the principle of non-discrimination, is not absolute, but is subject to various exceptions. The most comprehensive exception relates to restrictions which may be placed by each Member State on the rights granted to migrants by Community law on grounds of public policy, public security and public health. Furthermore, other specific restrictions are found, one of which relates to. employment in the public sector. Thus, within the ambit of public service employment, migrant workers may, in certain circumstances to be dealt with in Chapter Two of this thesis, be denied the right to rely on the protection granted to them by means of inter alia Article 48(2) EC. However, as we shall see, such Public Service Exception is not absolute, but is restricted to certain activities which are connected with the exercise of official authority. Even in the case of freedom of establishment, a similar exception is found in Article 55 EC in the case of activities connected with the exercise of official authority. Here again, such migrant self-employed workers are barred from relying on the equal treatment principle in the exercise of such activity. Attention shall also be granted to the right to freedom of movement which, by means of three 1990 Directives, has been extended to various categories of non-economically active persons, being students, retired persons and other persons of independent means, to be examined in Chapter Four. In Chapter Five then, we shall focus on the special situation of third country migrants within the Union. The extent, if at all, to which such equality principle is applicable in their regard shall be discussed, as well as the problems which are still being faced by such persons, in view of the lack of co-ordination between Member State governments on this issue. Finally, the Maltese situation as regards migrant workers shall be dealt with in the final chapter of this thesis, by way of comparison with the position as existing under Community law, thus pin-pointing the various parts of Maltese legislation which need to be reviewed in order to comply with the Community's acquis.