Professor Steve Peers, University of Essex
* For further information on EU free movement law issues, refer to the upcoming second edition of the commentary on the EU Citizenship Directive, authored by Elspeth Guild, Steve Peers, and Jonathan Tomkin – available soon
A pertinent question arises when an EU citizen relocates to another Member State and gives birth: do new mothers risk losing their rights under EU free movement law? The Court of Justice of the European Union (CJEU), having previously addressed this issue for employed mothers in its 2014 Saint-Prix judgment, has now extended its legal interpretation to encompass self-employed women on maternity leave in the recent Dakneviciute judgment.
Background
The primary EU legislation governing EU citizens’ right to reside in another Member State, commonly referred to as the ‘citizens’ Directive,’ does not grant unrestricted rights for EU citizens to reside in other Member States. Exercising free movement rights necessitates EU citizens to be employed, self-employed, students, possess sufficient resources, or be a family member of someone within these categories (as defined by the Directive, EU Treaties, and relevant case law). After five years of lawful residence under EU law, individuals acquire permanent residency, rendering these conditions inapplicable.
Expectant mothers employed near their due date generally take maternity leave, returning to their employer afterward. This is supported by a separate EU law concerning pregnant workers that prohibits the dismissal of pregnant women or those on maternity leave except in ’exceptional cases’ (refer to the CJEU judgment in Porras Guisado for clarification on exceptions). This law also ensures employment contract continuity (with a potential one-year waiting period for maternity pay). In principle, this ensures these women maintain their worker status under free movement law, safeguarding their rights.
Challenges arise for women who were employed but ceased working before childbirth (as in Saint Prix) or are self-employed (as in Dakneviciute). The question arises: do they retain worker or self-employed status under free movement law? The citizens’ Directive stipulates that status is retained during: temporary work inability due to illness or accident; involuntary unemployment after a year of employment if registered as a job-seeker; involuntary unemployment after less than a year of employment or upon fixed-term contract termination if registered as a job-seeker (status retention might be limited to six months); or undertaking vocational training related to prior employment unless the individual is involuntarily unemployed.
In Saint Prix, an EU citizen discontinued her teacher training due to pregnancy, engaged in brief employment, and ceased seeking work as her due date approached. This disqualified her from retaining worker status under the citizens’ Directive. However, the CJEU determined these rules were not exhaustive. The Court prioritized the ‘worker’ definition from EU Treaties, encompassing individuals who previously worked in the Member State, ceased work due to late-stage pregnancy, and resumed work within a ‘reasonable period.’ This period considers ‘specific circumstances’ and national maternity leave laws, which must be at least 14 weeks to comply with EU law, though Member States can extend this. Subsequently, a UK judgment applied a one-year period in such cases.
The CJEU’s 2017 _Gusa _judgment (unrelated to pregnancy) determined that involuntarily unemployed self-employed EU citizens after one year retain their self-employed status, mirroring the citizens’ Directive’s provision for involuntarily unemployed workers.
Facts and judgment
Ms. Dakneviciute, initially employed in the UK, transitioned to self-employment as a beauty therapist during pregnancy. Post-childbirth, she briefly resumed self-employment, claimed benefits, and later re-entered employment. The dispute concerned her child benefit eligibility, with UK authorities contesting her right to reside. Uncertain if the Saint Prix judgment applied to the self-employed, despite the Gusa judgment, a UK tribunal sought clarification from the CJEU regarding the retention of status for previously self-employed new mothers.
The Court affirmed Ms. Dakneviciute’s retained status, validating her child benefit eligibility. Citing precedent treating employed and self-employed EU citizens uniformly, the Court applied the Saint Prix case by analogy. Referencing Gusa (highlighting the vulnerability of unemployed EU citizens), the Court emphasized the vulnerability of pregnant women, regardless of employment status. Additionally, the EU’s law on self-employed pregnant women mirrors the EU law on pregnant workers regarding maternity leave.
The Court rejected the UK government’s argument that self-employed women could easily be replaced during maternity leave, a purported interpretation of Gusa. Notably, Gusa made no such claim. Finally, echoing Saint Prix, the Court referenced permanent residence rules in the citizens’ Directive, stating that a single absence up to one year for pregnancy, childbirth, or other ‘important’ reasons does not interrupt the five-year residence requirement.
Therefore, a previously self-employed EU citizen new mother retains her status if she resumes ’the same or another self-employed activity or employment within a reasonable period after the birth of her child.’
Comments
Given the Saint Prix and Gusa judgments, the Court’s ruling unsurprisingly upholds the retained status of previously self-employed new mothers who are EU citizens. This ruling might seem self-evident to those unfamiliar with legal intricacies. The UK government’s persistence in contesting the case, even misinterpreting the Gusa judgment, is noteworthy. This argument lacks grounding in the Advocate-General’s opinion in Gusa, which conversely asserted the applicability of Saint Prix to self-employed individuals.
The crucial practical consideration for these mothers is determining the ‘reasonable length of time’ to resume employment or self-employment to retain their status. The Court provides no specific timeframe, possibly because it was conceded in national courts that Ms. Dakneviciute resumed work within a reasonable period (perhaps influenced by national case law). Notably, the EU law on self-employed pregnant women, like the EU law on pregnant workers, sets a 14-week minimum, allowing Member States to exceed this (as the UK has). Unlike Saint Prix, the Court omits referencing the new mother’s specific circumstances, though this might be unintentional considering the analogous application of the earlier judgment.
The impact of Brexit is significant. If the withdrawal agreement is ratified, the citizens’ rights provisions uphold existing law (including case law) for UK citizens relocating to the EU27 and vice-versa before the transitional period’s conclusion (end of 2020, with potential extensions). Leaving the EU without an agreement could enable the UK to diminish these rights for EU27 citizens, even pre-Brexit residents, and EU27 states could reciprocate for UK citizens. However, despite originating from UK courts, these cases remain relevant to other Member States (e.g., Irish citizens in Germany).
This judgment carries a broader social and historical significance. The Court explicitly acknowledges the vulnerability of pregnant workers. However, new mothers like Ms. Dakneviciute are further disadvantaged as migrant EU citizens, unemployed, and previously lower-income earners. The Court’s judgment addresses this intersectionality of sex, nationality, and social class to ensure access to child benefits. Nevertheless, a sense of finality pervades this ruling. In a few weeks, the UK might circumvent this ruling for future EU citizens. Benefits and unemployed individuals often bear the brunt of politically-motivated xenophobia.
Barnard & Peers: chapter 13; chapter 20
Photo credit: Coraims