Zdenka Jakesevic-Lang writes:
I am a Croatian citizen married to a German national with residency in Germany but holding a Croatian passport with an unlimited visa and working permit in Germany.
I am currently working with a Maltese company in Malta.
Do I have the same rights regarding working permit as any other citizen of EU?
What is my status?
The correspondent does not have the status of an EU citizen until Croatia joins the European Union. But, in the meantime, she can benefit from certain rights derived from her husband's status as an EU citizen.
EU law regulates the rights relating to the free movement of EU citizens and their family members, including the right of entry in another member state, the right of residence and the right to seek employment.
Insofar as non-EU family members, such as the correspondent, are involved, the law provides that when an EU national moves from one EU country to another, a residence document co-extensive with that of the EU worker must be issued. Similarly, the spouse of the EU worker - in this case, the correspondent - has the right to take up activity as an employed person in that country.
However, it must be clear that a non-EU national can only benefit from the above rules as a family member of the EU national who has exercised the freedom of movement in relation to employment or provision of services.
This means that she can only have the right to work in Malta if her husband (being an EU citizen) is himself already working in Malta as a result to his right to free movement. Her right does not exist independently and is conditional on her husband having exercised his right to come and work here.
Put simply, it means that if her husband is working in Malta then she has the right to work in Malta. But if he is not in Malta, she does not have the right to work here.
Short of having this right, of course, the correspondent may still be able to work in Malta. But only if she has obtained a work permit to do so. This work permit is conditional on the agreement of the Maltese authorities. In other words, the Maltese authorities may accept but they may also refuse to grant a work permit to a non-EU national.
This position is supported by case law and the European Court of Justice has made it clear that the members of a worker's family who are not EU citizens do not have any independent rights. Their rights are dependent on those of the EU worker.
On this subject, it is interesting to add that from April next year, EU law on free movement will be updated. But even this new law will make it clear that the rights of non-EU citizens who are married to EU citizens only apply when they are accompanying the EU citizen.
Therefore, in this case, the correspondent can only freely seek employment in Malta and enjoy all the rights emanating from the above laws if her husband, a German citizen, is himself employed in Malta and she is accompanying him here. But not if he is not.
Note also that the right to work in Malta still requires a work permit (until 2011) even for EU citizens. Until then the right to work in Malta is also conditional on the fact that Malta does not invoke the derogation granted during accession negotiations.
Currently, there is no coherent body of EU law governing the position of third country nationals. Their limited rights are based on a number of different legal provisions. These include their capacity as family members of EU nationals or as employees of EU service providers. The general range of EC rights and freedoms does not apply to them.
However, an important law regulating the position of third country nationals has been enacted and will enter into force next month. This will regulate the status of third country nationals who are long-term residents in an EU country, including Malta. Long-term residents will have the right to enjoy equal treatment with nationals with regard to access to employment and working conditions, under certain conditions.
A joyous Christmas and New Year to the editor, staff and all readers of The Times!
Readers wanting to raise issues or ask a question to Dr Busuttil can send an e-mail, referring to this column, to contact@simonbusuttil.com