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THE TREATY PROTECTS EQUAL TREATMENT IN NUMEROUS PROVISIONS
ARTICLE 18 TFEU
General provision which prohibits discrimination on grounds of nationality
ARTICLE 45 TFEU
(FREE MOVEMENT OF WORKERS)
Abolition of any discrimination based on the nationality… …as regards employment, remuneration and
other conditions of work and employment
ARTICLE 49 TFEU
(FREEDOM OF ESTABLISHMENT)
restrictions on the freedom of establishment… …shall be prohibited
ARTICLE 56 TFEU
(FREE MOVEMENT OF SERVICES)
restrictions on the freedom to provide services… …shall be prohibited
, ARTICLE 45 TFEU
(FREE MOVEMENT OF WORKERS)
- Vertical direct effect
- Horizontal direct effect (CJEU Walrave & Koch CJEU Bosman CJEU Angonese CJEU Laval)
CROSS-BORDER ELEMENT
Article 45 TFEU covers the permanent economic activities of the employed in a cross-border situation
(Saunders)
(McCharty)
DEFINITION OF ‘WORKER’
- Defined by case law (Community concept CJEU Hoekstra)
- May not be marginal and ancillary (CJEU Levin)
- A person who performs, for a certain period of time services for and under the direction of another in
return for which he receives remuneration (CJEU Lawrie-Blum)
- Also part-time (CJEU Kempf) and non-pecuniary remuneration (CJEU Steymann), trainee jobs (Lawrie-
Blum), semi-professional sport (Bosman), Short fixed-term employment (Ninni-Orasche)
RIGHTS PROTECTED
Regulation 492/2011 provides rights enjoyed by workers
Rights with regard to employment; housing and social rights
Art 7(2) Social advantages -> creatively used by the ECJ in order to create “full” equal treatment
PUBLIC SERVICE EXCEPTION
Only when involved in the exercise of State sovereignty:
Night watchmen cases:
CJEU Commission v Belgium (1980)
CJEU Commission v Belgium II (1982)
IMPORTANTLY -> The limitation concerning public service is only linked to the access to employment, not
the right to equal treatment of people in the public service once they are appointed (Sotigu)
PROTECTION AGAINST REVERSE DISCRIMINATION
Cases where a worker claims equal treatment on the basis of Article 45 in home MS
CROSS-BORDER ELEMENT
See McCharty, Dereci, Lida, Zambrano; Sayn Wittgenstein
DISCRIMINATION TO EQUAL TREATMENT
DIRECT DISCRIMINATION INDIRECT DISCRIMINATION NON-DISCRIMINATION
Different treatment of persons (equal burden in law different different (equal burden in law/equal
who are in a comparable burden in fact) burden in fact different but making less
situation explicitly on grounds of Angonese(language attractive)
nationality (different burden in requirements cannot be Bosman, Terhoeve, Commission
law and fact) required to be acquired in a v Denmark, Graf
Bosman, Commission v France, specific MS), Scholz
Commission v Italy IMPORTANT-> Groener -> CJEU Bosman: every measure
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