Appunti + casi + schemi riassuntivi Advanced European Union Law

THE FIRST SCHENGEN AGREEMENT

During the 1980s, a debate started over the meaning of free movement of persons. Some Member States felt that the concept should apply to European Union citizens only: this position involved keeping internal border checks in order to distinguish between citizens of the EU and non-EU nationals. Others argued in favour of free movement for everyone, which would imply the end of internal border checks altogether.

Since Member States could not reach any agreement at EU level, some countries, namely France, Germany, Belgium, Luxembourg and the Netherlands signed an international agreement in 1985: the Schengen Agreement.

The Schengen Agreement created a territory without internal borders. This became known as the "Schengen area". In this area, common rules and procedures are applied with regard to visas for short stays, asylum requests and border controls.

Simultaneously, in order to guarantee security within the Schengen area, cooperation and coordination

Between police services and judicial authorities have been increased. Following a Protocol annexed to the Treaty of Amsterdam, this intergovernmental cooperation was incorporated into the EU framework as of 1 May 1999 (acquis communautaire).

THE SCHENGEN ACQUIS (system of rules)

Progresses achieved by the Schengen Agreement have been included in the acquis communautaire through the adoption of an Additional Protocol to the Treaty of Amsterdam (1999).

This has also allowed the possibility to apply a more democratic control on the Schengen acquis. Moreover, citizens have the right to ask national courts or the Court of Justice of the EU to enforce their rights deriving from the Schengen Agreement.

THE MEMBERS OF THE SCHENGEN AREA

The Schengen area gradually expanded and nowadays it includes 26 European countries (22 EU Member States and 4 Non-Members).

The Schengen area includes the following countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,

Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland.

Nowadays, Bulgaria, Cyprus, Romania and Croatia (for lack of requirements), as well as Ireland (opt-out choice), are not Members of the Schengen area.

SCHENGEN INFORMATION SYSTEM

In order to reconcile freedom and security, the free movement of persons involves an improved cooperation and coordination between police and the judicial authorities, to safeguard internal security and, in particular, to fight organised crime.

For these reasons, the Schengen Information System (SIS) was set up.

SIS is a sophisticated database used by authorities of the Schengen Member Countries to exchange data on certain categories of people (and goods).

SCHENGEN EXCEPTIONS: United Kingdom and Ireland

The United Kingdom and Ireland only partially apply the Schengen Agreement rules.

The UK and Ireland have (since 1923) a long-standing cooperation agreement (Common Travel Area),

which foresees minimal border checks between themselves. The UK and Ireland are not party to the Schengen Agreement, but they partially cooperate with the Schengen Area, for police and judicial cooperation in criminal matters, and for the fight against drugs. Moreover, the UK (not yet Ireland) partially participates in the SIS.

LECTURE 13 - EUROPEAN INTERNAL MARKET: FREE MOVEMENT OF WORKERS (I)

FREE MOVEMENT OF WORKERS:

Article 45 TFEU deals with freedom of circulation of WORKERS and lists workers' rights: it refers to "employed workers" (employees).

Article 49 TFEU deals instead with freedom of establishment: it refers to "self-employed workers".

ART. 45.1 AND 45.2 TFEU: FREE MOVEMENT AND NON-DISCRIMINATION

Freedom of movement for workers shall be secured within the Union (ART. 45.1 TFEU). Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other

conditions of work and employment (ART. 45.2TFEU).

ART. 45.3 TFEU: WORKERS' RIGHTS

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

1. To accept offers of employment actually made;
2. To move freely within the territory of Member States for this purpose;
3. 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;
4. To remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

THE DEFINITION OF "WORKER"

The notion of 'worker' of the Treaty refers to "employed workers" (employees), as also indicated in Regulation No.492/2011 (formerly Regulation No.1612/68), in order to avoid different interpretations in the various

Member States. The Court of Justice widely contributed to shape this notion through its case-law.

THE DEFINITION OF 'WORKER' BY THE COURT OF JUSTICE

• Case Lawrie-Blum 66/85 (1986)
• Case Martinez Sala, C-85/96 (1998)

"A person who, for a certain period of time, performs services (in the sense of an economic activity) for and under the direction of another person in return for which he receives remuneration must be considered to be a worker."

CONDITIONS FOR THE APPLICATION OF ART.45 TFEU

Firstly, a worker must hold the European citizenship (citizenship of a Member State). In the case of citizens coming from new EU Member States, Member States may apply limitations to their free movement (for a period up to 7 years).

Third countries' nationals are not entitled to free movement within the EU, unless specific agreements on this issue are concluded between the Union and third countries.

Secondly, in order to apply art. 45 TFEU, the activity has to or will be performed