Class notes
Lecture European Law Week 2
- Course
- Institution
- Book
Notes from the lecture for the course European Law, week 2
[Show more]
Connected book
Book Title:
Author(s):
- Edition:
- ISBN:
- Edition:
More summaries for
-
Overview TFEU and TEU
-
Lecture notes European Union Law
-
Institutional and Substantive Law of the EU: Part 2
1 review
By: kikiheslenfeld • 6 year ago
Seller
Follow
KyraNieuwenhuijsen97
Reviews received
Content preview
Lecture Week 2Free movement of workers and persons; posti ng
Free movement
- Of workers
o Art. 45 TFEU, Regulation 492/2011
o Free movement of services: posting of workers
Art. 56 TFEU, Directive 96/71
- Of persons
o Art. 21 TFEU (European citizenship)
o Directive 2004/38
Applicability of an instrument
- First analyze the facts and select the most specific instrument/rule, i.e. the law giving
the strongest rights and check whether it is applicable
- Is there a cross-border element?
o In an entirely national situation, you cannot apply the rules laid down in EU
law
o It does not mean that you have to cross the border, for example a person born
in the Netherlands but with the French nationality applies for a job in the
Netherlands and gets rejected because of his nationality
- Does the person fall under the personal scope?
- Does the benefit fall under the material scope?
- Are all elements of the rule concerned satisfied by the facts of the case?
Free movement of workers
Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on
nationality between workers of the Member States as regards employment, remuneration
and other conditions of work and employment.
- Article 45(2) TFEU provides a prohibition of discrimination on basis of nationality
3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
- Article 45(3) TFEU shows the justifications. These are the only justifications that can
be made.
4. The provisions of this Article shall not apply to employment in the public service.
- This is an exception, so it is different from the justifications in (3).
, - Article 45 entails:
o Realization of internal market
o Non-discriminatory treatment on the labor market. No competition in the
area of labor law.
- Article 45 does not apply if none of the relevant facts relates to Community law (i.e. it
does not apply if all facts are limited to one Member State -> so if there is no cross-
border situation)
- Who is a worker?
o The term worker has community meaning (Lawrie Blum judgment)
Cannot be found in the treaties; probably because the member states
would not come to an agreement on the meaning of ‘worker’. It was
left to the Court of Justice to decide what falls under the scope of
‘worker’. The Court uses a broad interpretation of the term ‘worker’. In
some countries the term ‘worker’ has a specific meaning.
o Three criteria:
Performing an economic activity
For wage
Under supervision of another person
It has to be genuine and real work of economic value, which is
not merely marginal and ancillary.
o Very few exceptions to the term worker -> only if it is
seen as marginal and ancillary it is not seen as worker
- Article 45 has direct effect
o This can be invoked by individuals
- Article 45 has horizontal effect
o Bosman case, par. 82/83/93
Article 45 can be invoked in relation with a private organization, not
only in relation with a state/government. The Court wanted to give this
provision maximal effect.
- Article 45 TFEU entails the prohibition of:
o Direct discrimination
o Indirect discrimination
o Obstacles to free movement
Direct discrimination
- Direct discrimination: distinction by means of a forbidden criterion, i.e. nationality
(‘foreigners need a work permit’)
- Direct discrimination is forbidden unless permitted by the instrument concerned:
o Art. 45(3) TFEU: objective justification is limited to public policy, public
security or public health
- Exception in art. 45(4) TFEU: for employment in the public service
o Court: this exception is to be interpreted strictly. It covers posts involving
direct or indirect participation in the exercise of powers conferred by public
law and duties designed to safeguard the general interests of the State or
public authorities.
Can be found in case Lawrie Blum, par. 27
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller KyraNieuwenhuijsen97. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $3.25. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
77254 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now