Chapter 4 (En)gendering EU Citizenship

In: Gender Equality in the Mirror
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Sandra Mantu
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1 Introduction

This chapter discusses EU citizenship and the right to free movement of persons from the perspective of mobile EU women in order to understand how EU law shapes their capacity to make use of EU citizenship. The question that underpins the chapter is whether EU citizenship is a gendered status and if so, what are the consequences for those who do not fit the normative ideals embodied by it. Two interrelated issues concerning the free movement rights of EU citizens are discussed: (a) the intersection of gender with EU worker status, and (b) EU women’s access to the welfare state. The focus is on women who hold the nationality of an EU Member State. My interest in this specific group stems from the common assumption that EU citizens are privileged over non-EU migrants when it comes to their legal position and experience of mobility since they benefit from a different and more comprehensive set of rights than third-country nationals (tcns). However, the case law of the European Court of Justice shows that different categories of EU citizens enjoy different positions within the EU free movement framework and that EU citizens’ mobility depends largely on their capacity for self-sufficiency, which is attained through work or independent financial capability to support themselves. Since EU case law is silent on gender issues and implications thereof, my aim is to analyse some of this case law through a gender lens in order to understand better the hierarchies that ensue in relation to EU citizenship and, ultimately, how encompassing EU citizenship status is.

2 Law, (EU) Citizenship and Gender

EU citizenship is a legal status that is additional to state nationality without replacing it (Article 20 Treaty on the Functioning of the European Union; tfeu). It entitles its holders – the nationals of the Member States – to a set of rights (Articles 21–25 tfeu): the right to move and reside freely within the territory of the Member States, electoral rights, the right to diplomatic protection while outside the EU, the right to petition the European Parliament and the Ombudsman, the right to petition EU institutions, and the right to access EU documents. In addition, Article 18 tfeu establishes a right to non-discrimination on the basis of nationality. Due to the history of the EU and its pedigree as an economic project built around labour migration, from the panoply of EU citizenship rights listed above, the right to free movement remains the most valued and most prominent.1 The introduction of EU citizenship by the Maastricht Treaty is seen as part of a process of expansion of the right to free movement to economically inactive persons. The process started in the early 1990s and was subsequently consolidated by the European Court of Justice in its interpretation of EU citizenship read from the perspective of the general principle prohibiting discrimination on the basis of nationality.

At the national level, citizenship has been characterised as involving a complex relationship between an inside and an outside, those who are part of us and those who are not, which is difficult to challenge while remaining within the discourse of citizenship itself.2 While claiming equality as one of its organising principles, national citizenship has had a fraught relationship with gender: conventionally, the citizen as legal subject has been white, male and the owner of property.3 The enduring consequences of the failure to treat women equally to men become evident when looking at statistics on women’s incorporation into the labour market, the gender pay-gap or access to top positions across the globe.4 In the EU context, the choice of the language of citizenship has been criticised, mainly in light of the conditional nature of the right to free movement that privileges economically active and self-sufficient individuals, and EU citizenship’s limited personal scope that excludes tcns irrespective of how long they have resided in an EU state. These are illustrations of the boundary making and closure practices associated with the category of citizenship, more generally. However, as this chapter seeks to argue, because EU citizenship is moulded in the image of national citizenship, we should add to such criticisms, questions about the extent to which EU citizenship reifies at the supranational level the closure and boundary making exercises implied by national citizenship in relation to gender.

Notwithstanding the presence of well-developed gender equality law and jurisprudence, gender is seemingly absent from EU citizenship and free movement provisions, and from their interpretation by the Court of Justice.5 The presence of a general principle of equality in EU law has encouraged scholars to claim that gender mainstreaming, that is the integration of the gender perspective in all its policies, is constitutionally embedded in EU law.6 EU efforts towards gender equality focus on legislation that facilitates women’s equal access to employment, regulates working time to make it compatible with caring and family responsibilities, and develops and promotes social inclusion measures. From this perspective, any efforts that benefit women generally will benefit mobile women as well, without the need to address gender as an EU citizenship issue. However, the success of these regulatory efforts is debatable. Critics highlight that despite the promotion of an adult (read gender-neutral) worker model, EU policy and law continue to reinforce gendered stereotypes and fall short of achieving equal gender policies.7 The ‘Gender Equality Strategy 2020–2025’ published by the European Commission in 20208 continues to propose a dual approach to the implementation of the EU’s gender strategy. The approach is built on ‘targeted measures to achieve gender equality, combined with strengthened gender mainstreaming’, to which intersectionality is added as a cross-cutting principle of implementation.

For the time being, and gender mainstreaming notwithstanding, the absence of gender considerations in the formulation of EU citizenship law itself is problematic. Acker’s criticism of free movement as gendered illustrates this point well.9 In light of the EU’s historical development, the provisions on free movement of persons were initially understood to cover only workers and economically active persons. Women were assumed to migrate mainly as family dependants seeking to join a male breadwinner in the host state, who would be paid a living wage that covered his and his family’s expenses. This gendered vision of labour mobility has transitioned naturally into the provisions on EU citizenship whose starting point take the EU citizen as a neutral subject of law who encounters a level playing field when exercising free movement rights. It is difficult to identify legal provisions that are specifically designed to address the right to move and reside from a mobile woman’s perspective or that take a gender-sensitive approach to intra-EU mobility. The relevant primary and secondary legislation relies on a gender-neutral notion of ‘national of a Member State’ or ‘EU citizen’ to describe the beneficiaries of the right to free movement. The preamble to Directive 2004/38, which is the main piece of legislation detailing the conditions under which the right to free movement is to be exercised, provides that the Directive should be implemented without any discrimination between beneficiaries on grounds of ‘sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinion, membership of an ethnic minority, property, birth, disability or sexual orientation’.10 Except for this provision, it is unclear if and how gender considerations were integrated in the legal categories and rights detailed by the Directive. For example, the Directive contains provisions to ensure that family members do not lose rights in the event of death, departure from the host state, divorce, annulment or termination of registered partnership of the EU citizen exercising the right of residence (Articles 11/2, 12 and 13). Yet these provisions do not consider fully the potentially circumscribed status of women affected by family breakdown or bereavement.11

3 Mobile Women and EU Worker Status

Economically active EU citizens enjoy a privileged position when it comes to free movement rights. Prior to the acquisition of the right to permanent residence, the mobility of economically inactive EU citizens is conditioned by them having sufficient resources not to become a burden on the social assistance system of the host state and comprehensive medical insurance. Exercising free movement rights as an EU worker offers a more secure residence status, which is coupled with equal treatment and access to the host state’s welfare system. In the case of EU workers, claiming benefits from the host state to supplement income will have no impact on residence status. The opposite is true for economically inactive EU citizens. When claiming benefits, the latter risk being classed as not meeting the requirement of self-sufficiency or as posing an unreasonable burden on the host state’s welfare system. In both cases, the right to reside can be terminated. Thus, generally speaking and for women, in particular, the legal category under which EU citizens exercise mobility is highly relevant for their legal treatment in the host state.

The way the notion of EU worker has been defined by the Court of Justice plays an important role in shaping women’s exercise of free movement rights. The Court has declared that the notion of EU worker has an autonomous, ‘Union’ meaning. The definition must be based on objective criteria and ‘the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.12 This definition was further refined to clarify that work implies an economic activity and that the services performed must be capable of being regarded as forming part of the normal labour market, in the sense that there is demand for and a supply of such services.13 Remuneration takes the form of money. In the rare cases where it does not,14 the Court emphasised that payment in kind must nonetheless have a link with the market, which would exclude exchanges taking places wholly within the private sphere from the scope of the notion of EU worker. Emphasising the link between activities that can be considered ‘work’ and the market has exclusionary consequences for women who engage in activities that are not considered as part of the ‘normal labour market’ because they are not assigned an economic or monetary value. Thus, activities that belong to the private sphere, such as care work or rearing children are excluded, and this lends support to the view that EU citizenship is built upon the model of a male breadwinner who has less trouble meeting the requirements of the definition of worker.

Whereas the public–private divide is ill-reflected by EU provisions on free movement, some aspects specific to women in the labour market are better integrated into the definition of EU worker status: part-time work and, subsequently, lower remuneration. In this sense, part-time, atypical work and lower remuneration levels are specific to female employment15 and can have potentially negative consequences for classification as an EU worker. In its jurisprudence, the Court has affirmed that part-time work and even atypical work do lead to the acquisition of the status of EU worker if the work is real and genuine to the exclusion of activities that are purely ancillary.16

Levin is a case in point because it illustrates well the intersection between gender and the definition of work that the Court has developed along with the implications of successful integration via work in the internal market.17 Ms Levin was a British national married to a tcn spouse with whom she resided in the Netherlands. In 1979 she applied for a residence permit in the Netherlands based on free movement rules for workers. The Dutch authorities argued that Ms Levin was not working at the time of her application and, although she had found employment after the application, she was working part-time and for remuneration that fell below the minimum wage. Moreover, it was argued that Ms Levin started work only in order to acquire a residence permit for her tcn spouse. The Dutch authorities questioned her actual desire to work and argued that a person who subjectively does not wish to work should not benefit from the free movement rules. The Court found that the reasons for which a person decides to take up employment in a different Member State are irrelevant for qualifying that person as a worker as long as the activities performed are genuine and sufficient to meet the remaining conditions for being defined as a worker.18 The Court reiterated that free movement is meant, among other objectives, to promote a ‘harmonious development of economic activities and a raising of the standard of living’ and that ‘part-time employment although it may provide an income lower than what is considered to be the minimum required for subsistence, constitutes for a large number of persons an effective means of improving their living conditions’.19

It is noteworthy that the Court’s reasoning for opening up the notion of ‘worker’ to include those in part-time employment relies partly on the social implications of the rules of free movement. This can be read as an attempt to reconcile market forces with the social realities of work in a neoliberal economy that relies increasingly on flexible and insecure work arrangements. Nevertheless, the move is partial and mitigated by the fact that the Court underlines that the free movement of persons covers only those ‘who pursue or are desirous of pursuing an economic activity’. Economic activities are defined as ‘effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary’.20 Where exactly the line is drawn beyond which activities become ancillary remains an open question that is approached on a case-by-case basis.

The emphasis on individual assessment can lead to positive results for women, but does not always do so. Gender considerations are not integrated into the Court’s reasoning, nor do they seem to play a role. I will exemplify this with cases on Germany’s policy that excluded persons in minor employment from the EU notion of ‘worker’ and from the legal treatment that comes with it. In Genc, the applicant worked 5.5 hours per week as a cleaner.21 The Court stressed that the notion of ‘worker’ has an EU meaning. It argued that the number of hours worked and the level of remuneration are not the only relevant elements. The following facts were seen as indicating that the professional activity was real and genuine: the applicant was entitled to paid leave and to sickness payment, her contract was covered by the relevant collective agreement, and her contractual relationship with the same undertaking lasted for almost four years. For Mrs Genc, being treated as a worker was relevant for her residence rights. She had entered Germany as the spouse of a Turkish national and was initially given a residence permit as a spouse. Once the relationship ended, her residence rights were questioned. Being classed as a ‘worker’ within the EU meaning of the term entitled her to rights based on the ec–Turkey Agreement and Decision 1/80 implementing it.

The Hartmann and Geven cases were decided on the same day and concern the entitlement of EU workers who resided outside Germany to child-raising allowances in Germany.22 The relevant law excluded workers in minor employment who were resident abroad from receiving the child-raising allowance. Their link with German society was considered by the legislator not to be strong enough to justify equal treatment and access to social benefits. Ms Hartmann applied successfully for the benefit as the stay-at-home family member of a full-time EU worker and as such was an indirect beneficiary of equal treatment. Ms Geven applied unsuccessfully for the same benefit as an EU worker in minor employment. The Court argued that while she did meet the definition of an EU worker, her minor employment coupled with residence abroad entitled Germany to treat her differently. What is striking about these three cases is the absence of any questioning of the gender implications of the policy under discussion. Nor is there any acknowledgement that minor employment is typical of women’s employment and may require extra attention in a free movement context. The conditions for being a EU worker and discrimination on the basis of nationality steer the Court’s analysis, leaving no room for other elements.

4 Retaining EU Worker Status: Interruptions in Employment History

As discussed above, becoming anchored in the labour market as an EU worker entitles mobile women and men to a secure legal status and usually equal treatment with nationals from the welfare state of the host country.23 However, for women, being able to retain worker status in case of interruptions to their professional activity has proven contentious, especially when they interrupt their work due to pregnancy or caring obligations. Directive 2004/38 does not take into consideration the scenario where a migrant EU woman gives up work to care for her child in the host state. The Directive only deals with the situation where the migrant woman goes back to her state of origin for a maximum of one year due to childbirth or pregnancy: this option does not compromise the acquisition of the right to permanent residence in the host state.24 It is unclear why the legislator considered that a woman who has worked for, say, three years in a host state and who decides to return to her state of origin for one year should not lose her acquired rights, while a woman who decides to remain in the host state but gives up work to care for her child will lose her EU right to reside and compromise the acquisition of permanent residence if she is not self-sufficient during that one year.

The above issue is illustrated in Dias, where the applicant had resided in the United Kingdom (UK) for more than five years, but had been in and out of work.25 Had Ms Dias resided legally and continuously for five years in the UK, she would have been a permanent resident entitled to equal treatment. The UK authorities rejected her application for income support since they did not consider her to enjoy EU rights because of her periods of unemployment. The Court of Justice struggled with a period of one year during which she took time off work to care for her child. The Court found that she was voluntarily unemployed during that year and did not retain worker status. Since she was unemployed and not complying with the self-sufficiency requirements attached to the exercise of free movement rights, as an economically inactive mobile EU citizen, the Court found that that period of residence did not meet the conditions of regular (legal) residence under the Directive. In the end, Ms Dias received the benefit she had applied for because the Court considered that she had acquired permanent residence prior to leaving the labour market to care for her child. On one hand, the Dias case illustrates the importance attached to paid employment as the most secure way to enjoy the full advantages of EU citizenship. On the other hand, it suggests that, in such a system, women will generally be disadvantaged as they are ‘less likely to take up paid work or stay in paid work once they have children, even if they migrated as workers’.26

The redeeming power of work comes back time and time again in the Court’s jurisprudence on mobile EU women claiming social benefits. Directive 2004/38 provides for several situations in which worker status will be retained although there is no employment relationship as such.27 These include illness, accident, involuntary unemployment and, under specific conditions, embarking upon vocational training. As mentioned earlier, the Directive does not contain provisions that specifically address the situation of women who give up their job because of pregnancy or childbirth. The possibility for these women to retain worker status is incompatible with Article 7(3), which makes retention of worker status dependent on involuntary unemployment and the person being available for work and registered as a job-seeker.28

The Saint Prix case shows the limitations of such a legal framing.29 The applicant was a French national living and working in the UK who due to being in the late stages of her pregnancy had to give up work. The UK authorities denied her income support on the grounds that she lacked a (EU) right to reside. In their view, she no longer held EU worker status since she was voluntarily unemployed and not looking for work. She could not claim rights as an economically inactive person either, since she did not meet self-sufficiency requirements as shown by her request for financial assistance. Three months after the premature birth of her daughter Ms Saint Prix returned to work. This is one of the few cases where the Court of Justice has taken a stand on gender and mobility, acknowledging that ‘a Union citizen would be deterred from exercising her right to freedom of movement if, in the event that she was pregnant in the host state and gave up work as a result, if only for a short period, she risked losing her status as a worker in that State’.30 The Court’s solution was to interpret the notion of EU worker broadly so as to allow for the retention of EU worker status for women who give up work or give up seeking work due to the constraints of the late stages of pregnancy and aftermath of childbirth. In these circumstances, mobile EU women enjoy rights directly from the Treaty (Article 45 tfeu) since Directive 2004/38 is not applicable. Furthermore, retention of worker status is linked to the woman in question returning to work or finding another job within a reasonable period after the birth of her child.31

While in Saint Prix the specific situation of pregnant women and the legislator’s failure to regulate it in Directive 2004/38 are acknowledged by the Court, the setting is nonetheless a purely economic one. As the Dias case shows, taking time off to care for children has implications for residence and equal treatment. Prior to acquiring permanent residence, it is something that women with sufficient resources can do without losing rights, either because they can fall back on a spouse who works or has financial means or because they themselves have sufficient resources.

5 EU Citizenship: a Fundamental Change for Mobile EU Women?

Mobile EU women who claim social rights as economically inactive mobile EU citizens as opposed to EU workers or persons retaining worker status enjoy a more precarious legal position. This is because, for economically inactive EU citizens, claiming benefits can have negative consequences for entitlement to benefits and residence status, including termination of residence and expulsion from the host EU state.32 The first case in which the Court of Justice relied on EU citizenship combined with the principle of the prohibition of discrimination on the basis of nationality to enlarge the personal scope of EU citizenship and include economically inactive citizens centred around a Spanish woman in Germany. Ms Martinez Sala had lived in Germany since her childhood; she had a patchy employment history and had received welfare assistance, including for her first child.33 The German authorities refused to grant her benefits for her second child on the grounds that she could not produce a valid residence permit. She had applied for such a permit but only managed to obtain proof of application. The Court of Justice decided that a European citizen legally resident in Germany was entitled to rely on Article 12 ec (now Article 18 tfeu), which prohibits any discrimination on grounds of nationality, in order to claim equal treatment with national citizens in relation to claiming the child benefit. The requirement to produce a residence permit to obtain the benefit was judged to be direct discrimination on the basis of nationality since German nationals were not required to produce one. Ms Martinez Sala’s residence was deemed legal since she could not be expelled from Germany as she fell within the scope of the European Convention on Social and Medical Assistance (1953). Martinez Sala is seen as the cornerstone of the Court’s EU citizenship jurisprudence since it established that EU citizenship has the potential to expand the economic reading of free movement of persons. However, from a gender perspective, the Court’s obliviousness as to why Ms Martinez Sala had stopped working – children and care obligations – and the emphasis on regular residence are symptomatic of its treatment of mobile women.

Fast forward some 16 years to the Dano decision and gender is still missing from the Court’s analysis. In Dano, the applicant was a Romanian Roma woman who lived with her son in Germany in the apartment of one of her sisters who was also responsible for their maintenance.34 Ms Dano had no qualifications and had not worked in either Romania or Germany; neither was she looking for a job in Germany. She applied for benefits under the German basic provision, and was rejected because these benefits were reserved for job-seekers. The Court of Justice stated that mobile EU citizens are entitled to equal treatment with nationals of the host state in relation to benefits only when their residence in the host state meets the requirements of Directive 2004/38. Member States must have the possibility to refuse to award social benefits to an economically inactive EU citizen who, according to national law, has exercised her right to free movement with the sole aim of obtaining another state’s social assistance.

The facts of the Dano case lend themselves to an intersectional analysis of discrimination (gender, ethnicity and social class) in the context of EU mobility rather than simply discrimination on the basis of nationality.35 Yet the Court’s analysis focused exclusively on the legality of residence. It did not discuss how exercising free movement rights to join a family member (a sister in this case) who partially covers one’s expenses can be labelled under the provisions of EU citizenship law. Exchanges that occur outside the normal employment market and cannot be monetised, such as taking care of each other’s children, cleaning for the person who gives you shelter or doing other household work cannot be relied on as a basis to claim rights as an EU citizen. The market framework of EU citizenship remains relevant and is its driving engine. EU citizenship rules, legal provisions on free movement and their jurisprudential interpretation fail to acknowledge that ‘housework and care, as well as various forms of other work outside the relations of the market … are not merely residual activities but an integral part of capitalist economies’.36

6 Conclusions

This chapter has taken a closer look at gender and EU citizenship in law and case law. The picture that emerges is that the legal categories and rules governing the exercise of free movement rights are not designed to take the issues that are specific to women into account. This deficiency affects how the Court of Justice interprets them: gender as a category of prohibited discrimination appears absent. The introduction of EU citizenship, which has been described by the Court of Justice as the fundamental status of the nationals of the Member States, has not changed matters much. Like mobile men, mobile women who bring themselves within the scope of the notion of EU worker and who manage to remain within its orbit enjoy equal treatment and secure residence status. Yet this legal neutrality hides some uncomfortable truths. Statistical data on EU labour mobility shows that in terms of economic integration mobile women are worse off than mobile men,37 while the exercise of mobility rights continues to be informed by a ‘traditional gender divide … with work being predominant for males, and family (or personal relationships) being predominant for women’.38

The legislator’s and the Court’s silence on gender in the context of free movement and EU citizenship law needs to be questioned. Does it stem from a failure to identify the gendered implications of EU law? Is it connected with the neutral language used in law? How can women’s different choices and life trajectories in relation to children, family life and care obligations be articulated in legal terms? Clearly, there is a need for better, and perhaps different, legal tools and strategies to put gender on the agenda. The emphasis on nationality discrimination and equal treatment with nationals of the host EU state is no longer sufficient. Issues such as the value of care work, opting out of employment for family reasons, concentration in low-paid, short-term and insecure jobs, and interruptions to working life need to play a much bigger role in public, political and legal debates around EU mobility. But before entering into a dialogue on how gender intersects with EU mobility and what we can do to improve women’s position, a first step would be to recognise the gendered nature of EU citizenship.

1

For example, see, EU Commission, ‘EU Citizenship Report 2020: Empowering Citizens and Protecting Their Rights’ (European Union 2020).

2

Sandra Mantu, ‘The Boundaries of EU Citizenship: Reflections on Borders, Citizenship and Sovereignty’ in Paul Minderhoud, Sandra Mantu and Karin Zwaan (eds), Caught In Between Borders: Citizens, Migrants and Humans. Liber Amicorum in Honour of Prof. Dr. Elspeth Guild (Wolf Legal Publishers 2019); Sandro Mezzadra, ‘The Gaze of Autonomy – Capitalism, Migration and Social Struggles’ in Vicky Squire (ed), The Contested Politics of Mobility. Borderzones and Irregularity (Routledge 2011).

3

Heidi Gottfried, ‘Why Workers’ Rights are not Women’s Rights’ (2015) 4 Laws 139.

4

Jill Rubery and Aristea Koukiadaki, ‘Closing the Gender Pay Gap: A Review of the Issues, Policy Mechanisms and International Evidence’ (International Labour Office 2016); International Labour Organization, ‘Global Wage Report 2018/19: What Lies behind Gender Pay Gaps’ (International Labour Office 2018).

5

Heli Askola, ‘Tale of Two Citizenships? Citizenship, Migration and Care in the European Union’ (2012) 21 (3) Social & Legal Studies 341.

6

Jo Shaw, ‘The European Union and Gender Mainstreaming: Constitutionally Embedded or Comprehensively Marginalised’ (2002) 10 (3) Feminist Legal Studies 213; Joyce Mushaben and Gabriel Abels ‘The Gender Politics of the EU’ in Ulrike Liebert and Janna Wolff (eds), Interdisziplinäire Europastudien (Springer 2015).

7

Gottfried (n 3); Encarnation Gutiérrez-Rodríguez, ‘The Precarity of Feminisation: On Domestic Work, Heteronormativity and the Coloniality of Labour’ (2014) 27 International Journal of Politics, Culture and Society 191; Michelle Weldon-Johns, ‘EU Work-Family Policies – Challenging Parental Roles or Reinforcing Gendered Stereotypes’ (2013) 19 (2) European Law Journal 1.

8

EU Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A Union of Equality: Gender Equality Strategy 2020–2025’ (European Commission 2020).

9

Louise Ackers, Shifting Spaces. Women, Migration and Citizenship in the European Union (Policy Press 1998).

10

Directive 2004/38/ec of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No 1612/68 and repealing Directives 64/221/eec, 68/360/eec, 72/194/eec, 73/148/eec, 75/34 [2004] oj l 158, Recital 31.

11

Louise Ackers, ‘Citizenship, Gender and Dependence in The European Union: Women and International Migration’ (1996) 3 Social Politics: International Studies in Gender, State & Society 316.

12

Case 66/85 Lawrie v Blum [1986] ecr 02121.

13

Case C-196/87 Steymann v Staatssecretaris van Justitie [1988] ecr 6159; Case C-287/05 Hendrix Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen [2009] ecr 6907.

14

ibid.

15

Eurostat ‘Women’s Employment in the EU’ (Eurostat 6 March 2020).

16

Case C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ecr 1027; Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ecr 1741; Case C-413/01 Ninni-Orasche v Bundesminister für Wissenschaft [2003] ecr 13187.

17

Case 53/81 Levin v Staatssecretaris van Justitie [1982] ecr 1085.

18

ibid para 16.

19

ibid para 15.

20

ibid para 17.

21

Case C-561/14 Genc v Integrationsministeriet [2016] ecr 247.

22

Case C-213/05 Geven v Land Nordrhein-Westfalen [2007] ecr 6347; Case C-212/05 Hartmann v Freistaat Bayern [2007] ecr 6303.

23

Sandra Mantu and Paul Minderhoud, ‘Exploring the Links between Residence and Social Rights for Economically Inactive EU citizens’ (2019) 21 (3) European Journal of Migration and Law 313.

24

Article 16 of Directive 2004/38 sets out the general conditions for the acquisition of the right to permanent residence, namely legal residence for a continuous period of 5 years in the host EU state. Exceptions from the general rule are listed in paragraph 3 which reads as follows: ‘Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country’.

25

Case C-325/09 Dias v Secretary of State for Work and Pensions [2011] ecr 6387.

26

Heli Askola, ‘Tale of Two Citizenships? Citizenship, Migration and Care in the European Union’ (2012) 21 (3) Social & Legal Studies 341.

27

Retention of worker status is dealt with in Article 7(3) of Directive 2004/38 and reads as follows: ‘3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident; / (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office; / (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; / (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment’.

28

Sandra Mantu, ‘Protecting EU Workers in Case of Involuntary Unemployment. Retention of Worker Status’ (2014) 7 Online Journal on Free Movement of Workers in the European Union 15.

29

Case C-507/12 Saint Prix v Secretary of State for Work and Pensions [2014] ecli:eu:c:2014:2007.

30

ibid.

31

ibid.

32

Mantu and Minderhoud (n 23).

33

Case C-86/96 Martinez Sala v Freistaat Bayern [1998] ecr 2691.

34

Case C-333/13 Dano v Jobcenter Leipzig [2014] ecli:eu:c 2358.

35

Charlotte O’Brien, ‘Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53 (4) Common Market Law Review 937.

36

Linda McDowell, ‘Gender, Work, Employment and Society: Feminist Reflections on Continuity and Change’ (2014) 28 (5) Work, Employment and Society 825.

37

European Commission, ‘2017 Annual Report on Intra-EU Mobility’ (European Commission 2018).

38

Veronika Fajth, ‘Mobility in the European Union: What Don’t we Know?’ (Reminder-Project.eu, 19 April 2018) <https://www.reminder-project.eu/blog/mobility-in-the-european-union-what-dont-we-know/> accessed 30 July 2021.

References

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