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Week 7 & 8; Free movement of personsArticle 20 TFEU (FM of persons)
- Applies to all Union citizens, not only workers
Article 21 TFEU (FM of persons)
- (1) ‘’ Every citizen of the Union shall have the right to move and reside freely within the
territory of the Member States, subject to the limitations and conditions laid down in the
Treaties and by the measures adopted to give them effect.’’
o Residual provision (e.g. when workers regulation does not apply)
o Limitations in CD (after directive)
Explaining before and after CD directive
- Before the CD; highlighted the primary rights of 18 and art. 21 -> Union citizens cannot
automatically be exclude from to equal treatment + their personal circumstances must be
considered and any restriction must comply with the principle of proportionality -> very
generous interpretation
o Grzelczyk
o Baumbast
o Collins
- After the CD; limits and conditions in the CD must be applied, non-economically active
citizens can be excluded automatically
o Dano
o Alimanovic
,Free movement of economically active people
Free movement of workers (employed)
Article 45 TFEU on workers
- (1) ‘’ Freedom of movement for workers shall be secured within the Union
- (2) the freedom shall be free of discrimination between workers of the Member states
- (3) workers have the right to; but subject to limitation justified on the grounds of public
policy, public security or public health
o A) ‘’to accept offers of employment actually made’’
o B) ‘’To move freely within the territory of MS for this purpose’’
o C) ‘’To stay in a MS for the purpose of employment in accordance with provisions
governing the employment of nationals of that State laid down by law, regulation or
administrative action’’
o D) ‘’to remain in the territory of a Member State after having been employed in that
State, subject to conditions which shall be embodied in regulations to be drawn up by
the Commission.’’
- (4) Article 45 does not apply to employment in the public service
o C-149/79 Commission v. Belgium (on the definition of ‘public service’)
‘’entrusted with the exercise of powers conferred by public law and with
responsibility for safeguarding the general interests of the state…’’
o C-66/85 Lawrie-Blum (on the definition of ‘public service’)
‘’a special relationship of allegiance to the state on the part of persons
occupying them and reciprocity of rights and duties which form the
foundation of the bond of nationality’’
o Criteria based on the Lawrie-blum and commission v. Belgium case in order for the
occupation to be ‘public service’
Criteria from these two case law
1) direct or indirect participation in powers conferred by public law
, 2) special relationship of loyalty to the state
3) responsibility for safeguarding general interests of the state
Definition of worker
C-66/85 Lawrie-Blum (Main criteria for workers)
- ‘’ 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.’’1
C-53/81 Levin (additional requirement for part-time workers and the criteria of ‘remuneration’ of
Lawrie-blum [is there a minimum level of remuneration?])
- Individual must be engaged in ‘genuine and effective’ economic activity which is not on such
a small scale as to be ‘purely marginal and ancillary’
- Does not matter whether worker supplements income with another income
- Motives of the persons to seek work are irrelevant
C-139-85 Kempf (remuneration)
- ‘’ Someone pursuing effective and genuine part-time work cannot be excluded from art. 45
TFEU even if earn less then minimum wage’’
- does not matter if they receive social assistance to supplement their income
C-456/02 Trojani (‘what are genuine and effective’ activities?)
- decisive factor; is the type of activity considered part the normal job market?
o Interpretation left to the national courts
o Activities to constitute as a means of rehabilitation is not covered in ‘genuine and
effective’ activities
C-292-89 Antonissen
- The term ‘workers’ also include work-seekers who will enjoy the status of worker for a
reasonable period of time (6 months)
o Article 14(4)(b) CD; after 6 months, the person (and his family) may not be expelled if
they can show that they have been actively seeking for employment
Article 1(1) Workers regulation (492/2011) (Definition of ‘workers’) (WR)
- ‘’any national of an EU MS shall have the right to take up an activity as employed person
within the territory of another MS in accordance with the law governing the employment of
the nationals of that state’’
Article 17(3) Citizenship directives 2004/38 (CD)
- Retaining the worker status if;
o (a) He/she is temporarily unable to work as the result of an illness or accident.
1
Certain period of time (stability); to distinguish service providers and posted workers who provide
temporary services and workers
Direction; to distinguish Self-employed persons and workers (i.e. do they work under a superior?)
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