These are notes on Free Movement of Workers created in 2019. They follow a structured format which condenses the relevant case law, statutory provisions and academic opinion that are relevant to the topic to aid with exam revision.
Free movement of workers and EU citizenship: Must not be purely marginal and ancillary- this is where
the court tried to take account of modern short-term
Free movement of workers:
employment
Workers are the third category of persons (in addition to Raulin- call-up (i.e. zero-hours) contract does not
service providers and established persons) whose preclude the person concerned from being considered a
movement was regulated in the Treaty of Rome worker, provided the duration and regularity of their
Upon moving to a host Member State worker contribute activity is sufficient
to its economy, and the Treaty provisions are therefore Ninni-Orasche- the mere fact that the employment is of
aimed at maximising this contribution by removing short duration cannot of itself exclude the employment
possible obstacles to taking up a job in a Member State from Article 45 TFEU
other than that of one’s nationality. Levin- part-time work earning below a subsistence wage
is also work
The prohibition of restrictions to free movement of workers is Kempf- part-time work supported by social security
found in Article 45 TFEU: benefits was not on ‘such a small scale as to be purely
marginal and ancillary’.
1. Freedom of movement for workers shall be secured within the
Union.
The following two cases summarise the principles on who can be
2. Such freedom of movement shall entail the abolition of any viewed as a worker:
discrimination based on nationality between workers of the
Kruz- Neither the unique nature of the employment
Member States as regards employment, remuneration and other
relationship under national law, nor the level of
conditions of work and employment.
productivity of the person concerned, the origin of the
3. It shall entail the right, subject to limitations justified on funds from which the money is paid or the limited
grounds of public policy, public security or public health: amount of pay can have any consequence in
determining if a person is or is not a worker
(a) to accept offers of employment actually made;
Trojani:
(b) to move freely within the territory of Member States Concept of a worker under Article 45 has a specific
for this purpose; meaning and must not be interested narrowly.
Any person who pursues activities which are real and
(c) to stay in a Member State for the purpose of
genuine, to the exclusion of activities on such a small
employment in accordance with the provisions governing the
scale as to be regarded as purely marginal and ancillary,
employment of nationals of that State laid down by law,
must be regarded as a ‘worker’.
regulation or administrative action;
(d) to remain in the territory of a Member State after Court of justice has developed some legal protection for job-
having been employed in that State, subject to conditions which seekers:
shall be embodied in regulations to be drawn up by the
The essential feature of an employment relationship is,
Commission.
according to that case-law, that for a certain period of
4. The provisions of this Article shall not apply to employment in time a person performs services for and under the
the public service. direction of another person in return for which he
receives remuneration.
Who is a worker under Article 45:
Based on paragraph 3 of Article 45 does not seem to
Subordination (Working for/under someone)- This cover job-seekers as it suggests that movement rights do
element distinguishes workers from service providers not arise until a job offer has been made
and established persons Antonissen- migrants capable of demonstrating that
they have a genuine chance to find work cannot be
Lawrie- Blum: provides a three-part test for the definition of a requested to leave the host Member State immediately
worker as someone who: after the period within which they were allowed to look
for a job (six months in this case).
Performs services
Commission v Belgium- A Belgian law requiring a job-
For and under the direction of another
seeker to leave automatically at the end of a three-
In return for renumeration
month period breached Article 45 TFEU.
Real and genuine activity- i.e. economic activity
Collins- entitlement to employment related allowance.
Bosman: playing professional football is a genuine
The position of the job-seekers is now subject also to the
activity
provisions of the Citizenship Directive Articles 7, 14(4)
Jany: prostitution is a genuine economic activity
(b), and 24(2)
Steymann: work as part of a community-based religion
where they looked after his material needs and paid him Scope of the prohibition in Article 45 TFEU:
pocket money might constitute work
Bettray: paid activity provided by the state as part of a The main prohibition is based on the principle of non-
drug rehabilitation programme did not amount to discrimination or equal treatment, as reflected in the
genuine and effective economic activity. language of Article 45, paragraph 2 TFEU.
This includes direct discrimination:
, Commission v Italy: Italian law provided that private Reina - includes childbirth loan.
security work could be carried out only by Italian Article 10: children of workers shall be admitted to the
security firms employing Italian nationals. host State’s general education, apprenticeship and
Commission v France : French rules requiring a ratio of vocational training courses under the same conditions as
three French seamen to one non-French seaman on a the nationals of that State, if the children are residing in
merchant ship. the latter’s territory.
Prohibition also covers indirect discrimination: Teixera - A national of a Member State who was
Scholz: the refusal by an Italian selection board to take employed in another Member State in which his or her
into account a German applicant’s previous employment child is in education can claim, in the capacity of primary
in Germany is indirect discrimination carer for that child, a right of residence in the host
Sotgiu: residence requirements as indirect Member State on the sole basis of Article 10 of the
discrimination Regulation.
Groener: language requirements are indirect The right of a child under Article 10 is not conditional on
discrimination but can be justified. See Also Article 3(1) his parent having sufficient resources. The right is
of Regulation 492/2011. terminated when the child reaches the age of majority.
Courts have also adopted a market access test. This allows Public service exemption:
catching also non-discriminatory rules which nevertheless
impede free movement of workers: Article 45(4) TFEU provides that the prohibition of
restrictions to the free movement of persons does not
Bosman- Concerned transfer rules between football apply to employment in the public service
clubs It has been narrowly interpreted by the Court on the
Although the rules in issue in the main proceedings basis of a functional approach, i.e. deciding the nature of
apply also to transfers between clubs belonging to the activity on a case by case basis rather than excluding
different national associations within the same Member entire sectors:
State and are similar to those governing transfers Marina Mercante Espanola- Public service covers posts
between clubs belonging to the same national which involve direct or indirect participation in the
association exercise of powers conferred by public law and duties
They still directly affect players’ access to the designed to safeguard the general interest of the State
employment market in other Member States and are or of other public authorities
thus capable of impeding freedom of movement for Examples:
workers. Specific functions of the state and similar bodies carried
They cannot, thus, be deemed comparable to the rules out by the armed forces, the police and other forces for
on selling arrangements for goods which in Keck and the maintenance of order, the judiciary, the tax
Mithouard were held to fall outside the ambit of [Article authorities and the diplomatic corps.
34 TFEU].
Justifying restrictions on free movement of persons:
Wide interpretation of the scope of the prohibition in Article 45
TFEU has been codified in Article 3 of Regulation 429/2011: Treaty based derogations:
Article 3 (1)- Codifies the scope of restrictions on free Article 45 (3) provides the derogations of public policy,
movement of workers (includes both non-discrimination public security and public health
and market access approaches) Directly discriminatory, indirectly discriminatory and
Article 3 (2) – gives some examples of restrictive non-discriminatory measures can be justified with
practices reference to these derogations.
Regulation 492/11 specifies the prohibition on Directly discriminatory measures can be justified only
restriction on free movement both in relation to rules with reference to Article 45(3) TFEU grounds.
concerning initial access to employment (Articles 1-6), Much of the previous case-law on these grounds has
and rules concerning the ‘exercise’ of employment, once now been codified by the Citizenship Directive 2004/38,
the migrant accessed particular job in a host Member Articles 27-33
State (Articles 7-9).
Judicially developed derogations:
Although these rules specify the general principle of
equal treatment in relation to the movement of O’Flynn- the term ‘objective justifications’ was used to
workers, they also include certain rules which make the refer to non-Treaty derogations
position of a worker more advantageous than that of Only indirectly discriminatory and non-discriminatory
any other EU mobile citizen: measures can be justified with reference to derogations
Article 7(2): workers shall enjoy the same social and tax not mentioned in Article 45 TFEU.
advantages as national workers. Social advantages have The conditions mentioned in Gebhard for relying on
been interpreted very broadly by the Court of Justice: objective justifications apply also to free movement of
Fiorini - includes benefits that are not directly linked to workers
the employment contract or are granted to the Examples:
dependents of the worker.
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