Professor Steve Peers,
University of Essex
* For more on EU free movement
law issues, see the forthcoming second edition of the commentary
on the EU Citizenship Directive,
by Elspeth Guild, Steve Peers and Jonathan Tomkin – published soon
What happens when an EU citizen
moves to another Member State, and has a baby? New parents likely face some sleepless
nights in any event; but should new mothers in particular lose further sleep at
the prospect of losing their status under EU free movement law? The CJEU,
having ruled on this issues as regards employed new mothers in 2014 (the Saint-Prix judgment, discussed here),
has now extended its case law to cover self-employed women who take a maternity
break, in its recent judgment in Dakneviciute.
Background
The main
EU law on EU citizens’ right to move and reside in another country – often known
as the ‘citizens’ Directive’, does not provide for unlimited rights for EU
citizens to go and live in another Member States. To exercise free movement
rights, EU citizens must be employed, self-employed, students, have sufficient
resources, or be a family member of someone in one of those categories (as
further defined by the Directive, the EU Treaties, and relevant case law). After
five years’ residence in accordance with this EU law, they obtain the right to
permanent residence, at which point such conditions no longer apply.
Mothers-to-be who are in paid work
as as the baby’s birth approaches often simply take maternity leave from their
current employer, and then return to work for that employer some time after the
baby is born. This is underpinned by a separate EU law
on pregnant workers, which prohibits dismissal of women who are pregnant or
on maternity leave save for ‘exceptional cases’ (on these exceptions, see the CJEU
judgment in Porras
Guisado). Equally, the same law guarantees continuation of an
employment contract (except for a possible one-year waiting period to qualify
for maternity pay). In principle this should
mean that the women concerned remain workers under free movement law, so they
should be at no risk of losing status under that law.
The difficulty is for women who were employed but who gave up their current
work before the birth (as in Saint Prix)
or who are self-employed (as in Dakneviciute).
Do they retain status as workers or self-employed persons under free movement
law despite this? The citizens’ Directive says that status is retained in the
event of: temporary inability to work ‘as the result of an illness or accident’;
involuntary unemployment after being employed more than one year, if registered
as a job-seeker; involuntary unemployment after being employed for less than
one year, or if a fixed-term contract period of less than a year has ended, if
registered as a job-seeker, although retention of status might in these cases only
last for six months; or taking up vocational training, which must be linked to
the prior employment unless the EU citizen is involuntarily unemployed.
In the Saint Prix case, the EU citizen dropped her teacher training course
when she became pregnant, did some short-term work, and then gave up looking
for work as the due date for her baby became closer. So she did not qualify
under the citizens’ Directive’s rules for retaining worker status. However, the
CJEU ruled that those rules were not exhaustive. In the Court’s view, the
notion of ‘worker’ came first and foremost from the primary law of the EU
Treaties, and covered someone who had previously worked in that State, given up
work due to the physical impact of late pregnancy, and returned to work within
a ‘reasonable period’ afterward. That period was to be defined taking account
of the ‘specific circumstances of the case’, as well as national law on
maternity leave, which must be at least 14 weeks in order to comply with the EU
law on pregnant workers, although Member States can set longer periods. In fact
a later
judgment in the UK applied a one-year period in principle to such cases.
Subsequently, in its 2017
judgment in Gusa (which did not concern pregnancy),
the CJEU ruled that self-employed EU citizens who became involuntarily no
longer self-employed after one year should be treated the same as having
retained their self-employed status, on the same basis that workers retain it
under the citizens’ Directive in the event of involuntary unemployment.
Facts and judgment
Ms Dakneviciute was employed in
the UK, then became a self-employed beauty therapist when she became pregnant.
After her baby was born, she briefly returned to self-employment, then briefly
claimed benefits, then became employed again. This dispute concerned her
eligibility for child benefit: the UK authorities claimed that she did not
qualify for it, because she did not have a sufficient right to reside. Uncertain
as to whether the Saint Prix judgment
applied to the self-employed, even despite the Gusa judgment in the meantime, a UK tribunal asked the CJEU to
clarify whether previously self-employed new mothers retained status under free
movement by analogy with previously employed new mothers.
The Court ruled that Ms Dakneviciute
did retain her status, which meant that she was eligible for child benefit.
Previously case law had treated employed and self-employed EU citizens in a unified
way; the Saint Prix case applied by
analogy; applying Gusa (which had
referred to the vulnerability of unemployed EU citizens), pregnant women are
vulnerable, whether they are employed or self-employed; and the EU had adopted
a law
on self-employed pregnant women, which refers to maternity leave on a
similar basis as the EU law on pregnant workers.
Furthermore, the Court rejected
the UK government’s argument that self-employed women could easily send someone
to replace them during a maternity break. This was apparently an interpretation
of the Gusa judgment (see paras 21
and 38 of the Dakneviciute judgment),
although the Gusa judgment made no
point about replacing individual self-employed persons. Finally, as in the Saint Prix judgment, the Court referred
to the rules in the citizens’ Directive on obtaining permanent residence, which
provide that a single absence of up to one year for pregnancy or childbirth (or
other ‘important’ reasons) does not stop the clock as regards obtaining the
five years’ residence necessary to qualify for permanent residence.
It followed that a previously self-employed
EU citizen new mother retains her status of being self-employed, provided that she
returns ‘to the same or another self-employed activity or employment within a
reasonable period after the birth of her child’.
Comments
In light of the Saint Prix and Gusa judgments, the Court’s ruling that previously self-employed EU
citizen new mothers retain their status is unsurprising. A non-lawyer might even describe it as a
statement of the bleeding obvious. It is striking that the UK government
continued to fight the case, including by an interpretation of the Gusa judgment that has no basis in that
judgment. Nor does that argument have any basis in the Advocate-General’s opinion
in Gusa, which actually conversely
said (in paras 72 and 73) that Saint Prix
applied by analogy to self-employed persons. With great respect, the UK
tribunal should not have given the government's argument the time of day.
The most pressing practical
question for previously self-employed EU citizen new mothers is how to
determine the ‘reasonable length of time’ which they have to take up employment
or self-employment in order to retain their status. The Court makes no suggestion
about how long that might be, perhaps because it was conceded in the national
courts that if Ms Dakneviciute
retained her free movement status, she had obtained new work within a
reasonable period of time (see para 19 of the judgment: perhaps this concession
was in light of national case law referred to above). In practice, the EU law
on self-employed pregnant women, like the EU law on pregnant workers, refers to
a minimum period of 14 weeks, with
Member States free to exceed that minimum (as the UK has done). Unlike in Saint Prix the Court does not refer
again to also taking account of specific circumstances of the new mother’s case;
but since the Court was applying that earlier judgment by analogy, this
omission may well be accidental.
What is the impact of Brexit? In
the event that the withdrawal agreement is ratified, the citizens’ rights
provisions (discussed here)
retain existing law (including case law) for UK citizens who move to the EU27,
and EU27 citizens who move to the UK, before the end of the transitional period
in the agreement (which is end 2020, with a possible extension of one or two
years). In the event of leaving the EU without an agreement, the UK could chip
away at these rights for EU27 citizens, even if they were already resident
before Brexit Day – and EU27 States could do likewise for UK citizens. However,
although both of these cases came from the UK courts, they will still be relevant
to the remaining Member States (ie Irish citizens moving to Germany) in any
event.
Finally, there’s a broader social
and historical context to this judgment. The Court expressly mentions the
vulnerability of pregnant workers. But new mums in Ms Dakneviciute’s position
are also vulnerable as people who are migrant EU citizens, unemployed, and previously
lower paid. The Court’s judgment cuts through
this intersectionality of sex, nationality and social class to guarantee access
to child benefit regardless. Yet there’s a fin
de siècle feeling to this ruling: in six weeks’ time, the UK might be
able to disapply it to EU citizens in future. Benefits and unemployed people
are obvious targets of the xenophobia that cynical politicians stoke.
Barnard & Peers: chapter 13;
chapter 20
Photo credit: Coraims
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