In depth Masters module notes on the European Union (EU) law on the Free Movement of workers and persons.
Including a step-by-step guide on how to answer a legal problem question for exams.
Essential Guide to European Constitutional Law: Understand the Foundations of EU Legislation
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EU Free Movement Law
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Free Movement of Workers and Persons
Main Legislation
- Art. 26(2) TFEU: General Provision for free movement of persons.
- Art. 45 TFEU: aims to eliminate discrimination based on nationality
- Directive 2004/38: on the rights of citizens of the Union and their family members to
move and reside freely within the territory of the MS
- Regulation 492/11: on the right to equal treatment as regards employment,
remuneration and other conditions of work and employment.
Article 45:
1. Secures free movement of workers within the union
2. Abolition of discrimination based on nationality of workers
3. Entails certain rights of workers subject to limitations justified on grounds of Public
Policy, Security or Public Health
a. Accept offers of employment actually made
b. To move freely through MS territory for this purpose.
c. To stay in a MS for the purposes of employment
d. To remain in a MS subject to conditions.
4. The provisions of this article don’t apply to public service.
Article 45 guarantees Free Movement of Workers.
- Walrave (36/74 [1974])
- The rule on non-discrimination applies in judging all legal relationships in so far
as these relationships, by reason either of the place where they are entered into
or of the place where they take effect, can be located within the territory of the
community [28].
- Prohibition of such discrimination does not only apply to the action of public
authorities but extend likewise to rules of any other nature aimed at regulating in
a collective manner gainful employment and the provision of services. [17]
- The rule challenged was made by an international sporting association (neither
public nor private body) - vertical effect.
- The rule on non-discrimination can be relied upon when the legal relationship is
entered into in the EU, even if the work is perfomed outside the EU.
- Bosman (C-415/93 [1995])
- It is not necessary, for the purposes of the application of the Community
provisions on freedom of movement for workers, for the employer to be an
undertaking; all that is required is the existence of, or the intention to create, an
employment relationship [74]
- Art. 45 therefore applies to rules laid down by sporting associations …, which
determine the terms on which professional sportsmen can engage in gainful
employment. [87]
, - A football player challenged a rule that was made by an international sporting
association (neither public nor private body)
- The rules that were capable of hindering access to employment in another MS
and would be covered by Art. 45 uless objectively justified and proportionate.
- Art. 45 could be enacted against organisations.
- Angonese (C-281/98 [2000])
- It should be noted at the outset that the principle of non-discrimination set out in
Art. 48 is drafted in general terms and is not specifically addressed to the MS’s
[30]
- The prohibition of discrimination on grounds of naitonality laid down in Art. 45
must be regarded as applying to private persons as well [36]
- Where an employer makes a person’s admission to a recruitment competition
subject to a requirement to provide evidence of his linguistic knowledge
exclusively by means of one particular diploma, issued only in one particular
provine of a member state, that requirement constitutes discriminaiton on
grounds of nationality. [45]
- A private bank in Italy required a certificate of bilingualism to apply for
a job with them. The certificate was issued by the local authority after
an examination only in the province of Bolzano → in effect put foreign
nationals at a disadvantage.
- Extended Art. 45 to direct effect on individuals, which can be invoked by any EU
citizen in any domestic court
- Kranemann C-109/04 [2005]
- ‘Provisions which preclude or deter a national of a MS from leaving his country of
origin in order to exercise his right to freedom of movement constitute an
obstacle to that freedom. [26]
- Part of prescribed training for lawyers in Germany involved a practical placement
for which trainees received a subsistence allowance and were reimbursed their
travel expenses to the placement, but only reimbursed for travel within Germany
- Held that this was covered by Art. 45 as the training was essential for access to
employment in the judiciary
SCOPE of Art. 45
A need for cross-border movement in order to invoke Art. 45
- Move and work
- Cross border worker every day
- Move and work and then to return.
Cross border movement is defined broadly by the court:
- Boukhalfa: Working for an embassy of a member state provides a sufficiently close link
with the union.
, - Salemink: EU law was held to apply to a worker employed on a gas rig on the
continental shelf of the Netherlands, even though he had moved his residence to Spain.
- Walrave: Applies to work done outside the EU so long as the legal relationship of
employment was entered into inside the EU
- Peterson: EU law can apply to professional activities outside EU territory ‘as long as the
employment relationship retains a sufficiently close link with the EU’ i.e. with the law of
the member state.
- Gardella: EU law also applied in an international organisation.
Defining a worker
- It is not defined in Art. 45, so left for the courts to decide.
- Hoekstra (75/63 [1964])
- It is if for the national courts to decide whether someone is a ‘worker’ [2]
- Held that the definition of a ‘worker’ is not exclusively someone who is currently
employed but that the concept may also cover those person 'likely to remain in
the territory of a MS after having been employed in that state’. [2]
- Art. 45 can be relied upon by an employer (Clean Car Autoservice) or by a relevant
third party (Innovative Technology Centre), rather than only by the employee.
Being a worker requires an ‘effective and genuine’ activity, not a marginal and ancillary one
Levin (53/81 [1982])
- [Art. 45] covers only the pursuit of effective and genuine activities, to the
exclusion of activities on such a small scale as to be regarded as purely marginal
and ancillary. [17]
- Not for MS to decide - purely an EU law matter
- There should be a wide interpretation
Examples of genuine and effective activities
- Levin (53/81 [1982])
- The provisions of community law relating to freedom of movement for workers
also cover a national of a member state who pursues, within the territory of
another member state, an activity as an employed person which yields an
income lower than that which, in the latter state, is considered as the minimum
required for subsistence whether that person supplements the income from his
activity as an employed person with other income so as to arrive at that minimum
or is satisfied with means of support lower than the said minimum, provided that
he pursues an activity as an employed person which is effective and genuine.
[18]
- A UK national working as a part-time chambermaid in Holland for less than the
minimum wage.
, - The court emphasized that the terms’ worker’ and ‘activity as an employer
persons’ are not to be defined by reference to the national laws of the MS but
have an EU meaning.
- Steymann (196/87 [1988])
- In a case such as the one before the national court it is impossible to rule out a
priori the possibility that work carried out by members of the community in
question constitutes an economic activity … Insofar as the work, which aims to
ensure a measure of self-sufficiency for the Bhagwan Community, constitutes an
essential part of participation in that community, their services which the latter
provides to its members may be regarded as being an indirect quid pro quo for
their work. [12]
- Although he received no remuneration for his work in a religious community, he
was looked after by the community in return for his work.
- For his application for a residence permit, this was sufficient to
constitute an economic activity → the fact that unpaid work doesn’t
necessarily mean that it is not effective economic activity.
- Kempf (135/85) [1986]
- It is irrelevant whether those supplementary means of subsistence are derived
from property or from the employment of a member so his family, as in levin, or
whether as in this instance they are obtained from financial assistance drawn
from public funds of the MS in which he resides’. [14].
- Kempf was a part-time teacher, who had to have his earning boosted by
supplementary benefits → considered a worker.
- Lawrie-Blum (66/85 [1986])
- The essential feature of an employment relationship, however is that for a certain
period of time a person performs services for an under the direction of another
person in return for which he receives remuneration [17]
- The applicant was a salaried trainee teacher who initially performed her duties
under supervision but later independently can within the definition of a ‘worker’.
- See also: footballers (Bosman); fisherman with irregular income (Agegate); pace
setters in cycling (Walrave & Koch)
Lawrie-Blum three-part test for the definition of a worker as someone who:
1. For a certain period of time a person performs services of economic value
2. For and under the direction of another person; and
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