Mobility rights in the European Union and Canada.

• Author: de Mestral, Armand

The authors use mobility rights within Canada and the European Union to illustrate the idea that a federation is always a work in progress. Both Canada and the EU have been concerned with personal mobility since inception. In Canada mobility rights have been traditionally understood as a function of the law governing provincial legislative competence over business, professions, and services, and the interrelationship between these powers and federal jurisdiction. Since 1982, however, the Canadian Charter of Rights and Freedoms has enshrined a right to mobility in its section 6, which the authors examine to identify the provision's underlying objectives. Within the EU, in contrast, mobility is principally a right exercised by employees and employers to seek and give work, paralleled by the right of establishment of professional workers and the broader theme of the free movement of services. Through treaty amendment, legislation, jurisprudential change, and most recently, the Charter of Fundamental Rights of the European Union, EC law has expanded the meaning of mobility, resulting in a paradigm shift from the rights of workers to the rights, more generally, of persons, and latterly, of citizens. The Canadian experience suggests that while a constitutionalized right of mobility may become a central element of constitutional discourse, it does not signal a break from the past trend of incremental change. This lesson is relevant to the EU, where the process of constitutionalization is currently, if controversially, underway.

Les auteurs, a travers un examen de la liberte de circulation au Canada et dans l'Union europeenne, remarquent qu'une federation reste toujours un projet en evolution. Ainsi, les deux federations ont fait de la fibre circulation des personnes une question importante depuis leur creation. En droit constitutionnel canadien, la libre circulation etait traditionnellement fonction du droit gouvernant la competence provinciale en matiere commerciale, professionnelle et de services, et de la relation entre ces pouvoirs et les champs de competence federaux. Toutefois, depuis 1982, l'article 6 de la Charte canadienne des droits et libertes garantit la liberte de circulation et d'etablissement, et les auteurs font etat des objectifs sous-jacents a l'adoption de cette disposition. Dans l'Union europeenne, par contre, la liberte de circulation est principalement un droit exerce par les travailleurs et les employeurs pour rechercher et offrir des emplois, qui s'inscrit en parallele avec le droit d'etablissement des professionnels et la question plus large de la fibre circulation des services. Neanmoins, h wavers des amendements aux traites, l'adoption de mesures legislatives, l'evolution de la jurisprudence et la recente Charte des droits fondamentaux de l'Union europeenne, le droit communautaire a elargi le champ d'application de la liberte de circulation, avec pour resultat un changement d'orientation pour celle-ci, des droits des travailleurs aux droits de la personne et du citoyen. L'experience canadienne suggere que l'enchassement du droit a la fibre circulation, bien qu'elle tende a en faire un element central du discours constitutionnel, ne signifie pas une rupture avec son evolution graduelle. Selon les auteurs, cette conclusion est pertinente au processus similaire en cours en Europe.

Introduction I. Mobility Rights under the Constitution of Canada A. An Economic Scheme? B. Human Rights? C. "Nation-Building" Rights? D. Limitations on Subsection 6(2) Rights II. Freedom of Movement of Persons and Residence in the European Union A. The Provisions on Free Movement and Residence B. Jurisprudential Developments 1. Economically Active Persons 2. Non-economically Active Persons C. Freedom of Movement and Citizenship Conclusion Introduction

Comparison serves to reveal similarities and differences. Similarities emerge when two apparently different systems are revealed to have the same deep structure and to promote similar goals. Differences appear when it can be shown that two apparently similar systems have, in fact, quite different objectives and are actually designed to promote different values. Above all, comparison serves to reveal the true nature of a system to those trying to understand it. In light of such positive assumptions regarding the value of comparison, we posit that comparing the Treaty on European Union (1) and its companion European Community Treaty (2) with the Constitution of Canada is a worthwhile endeavour.

Comparisons have frequently been made between the U.S. Constitution, particularly its "commerce clause", (3) and certain aspects of the TEU/EC Treaty. (4) Since the two units are of roughly the same size, and given their economic rivalry, the comparison seems natural. It is well-known that equals like to be compared, if only to display their respective superiority to others. As we hope to show in this article, however, a more telling comparison is possible between the TEU/EC Treaty and the Constitution of Canada.

One of the principal difficulties in comparing anything with the TEU/EC Treaty is that the European "Union", "Community", "Single Market" is not a finished concept. It is already much more than a customs union and it is unlikely to remain static as an economic union. It is a work in progress, and what may be said of it at any one time may cease to be true at a later time. Regardless of the manner in which one defines the rules and structures created by the TEU/EC Treaty, we believe that the EU is more properly compared with a federation, that is, a political entity, than with a free trade association. The presence of supranational law-making institutions and supreme law having direct effect on the citizens of each Member State, combined with the broad jurisdiction conferred upon the EC, have created a quantum difference between the EU and the many free trade associations that exist throughout the world today.

Comparing a newly emerging Europe with a well-established federal union that dates back to 1867 may, at first blush, appear to prejudge the question so many commentators are asking as to whether the European experiment has already metamorphosed into a federation of its own. We make no such claim; rather, one central conclusion of our comparative analysis is that, while existence in the form of a constitutionally established federation does entail certain consequences with respect to stability and longevity, a federation can also be described as a work in progress. However complex and tightly drafted the federal constitution may be, it is no assurance against the forces of change, which are in fact central to a healthy federation. If comparative constitutional law reveals anything, it is that change is inevitable and generally desirable.

Multiple points of comparison might be pursued, but we have chosen personal mobility to illustrate this article's thesis. Both Canada and the EU have been vitally concerned with the promotion and maintenance of personal mobility since inception. For a unitary state, mobility is virtually axiomatic, except under totalitarian conditions, but for a federation the matter is much more complex and will depend greatly upon the division of legislative powers. In Canada personal mobility has been seen as an incident of citizenship, but provincial jurisdiction over business and professional activities has often posed problems for citizens wishing to move physically from one province to another and to pursue economic activities. Within the EEC, then the EC, and now the EU, it has always been necessary to promote and define the exercise of the mobility rights of workers, persons, and services, as well as the rights of establishment. The process of definition has been long and complex and is certainly not yet complete. There is thus a common concern for mobility at different levels, including physical mobility, mobility as an economic value, mobility as an incident of citizenship, and finally, mobility as a human right. This article is therefore devoted to a single theme, but one that we believe illustrates a broader truth.

This article follows the internal logic of Canadian constitutional law and the different aspects of EC law designed to promote mobility. Thus in Part I mobility rights in the Canadian constitutional setting are understood initially as a function of the law governing provincial jurisdiction over business, professions, and services, including social and medical services, and the interrelationship between these heads of jurisdiction and federal jurisdiction over such matters as citizenship, criminal law, and inter provincial trade. After 1982 the dominant theme has become the exploration of mobility as a fundamental freedom, either seen as a right of personal mobility or an aspect of the complex right to equality. In Part II, while mobility in the EU is primarily a right exercised by employees and employers to seek and give work, it is paralleled by the right of establishment enjoyed by professional workers and the broader theme of the free movement of services. Through treaty amendment, legislation, and incremental change resulting from interpretation by the European Court of Justice ("ECJ"), EC law has expanded the meaning of mobility in many ways, including a paradigm shift from the rights of workers to the rights of persons, and lately, to the rights of citizens. The human rights dimension of mobility is gradually asserting itself through the same process.

1. Mobility Rights under the Constitution of Canada

   The right to personal mobility has not been the subject of much attention by Canadian courts since its entrenchment. (5) As Canadians are slowly struggling with its meaning, extent, and application, they are at the same time trying to define its justifications and purposes. Lee and Professor Trebilcock, in an interesting article, suggest three rationales for the protection of personal mobility: (a) mobility...