Essay plan for the following questions: To what extent does the case law on free movement of persons continue to distinguish between the rights and entitlements of the economically active and economically independent and their dependents and free movers who are not economically self-sufficient?
To what extent does the case law on free movement of persons continue to distinguish between the
rights and entitlements of the economically active and economically independent and their
dependents and free movers who are not economically self-sufficient?
Who enjoys free movement
‘persons’
o Non-economically active: Citizens of the EU – Art 21 ‘Every citizen of the union shall
have the right to move and reside freely within the territory of the Member States’
o Economically active: to take advantage of Art 45, 49, and 56 – workers/self-
employed/providers and recipients of services.
In the first 3 months of migration and after 5 years of residence no need to
show any economic activity.
nationals of one of the EU’s member States and be engaged in an economic activity as a
worker (Article 45-8); a self-employed person/company/breach or agency (Art 49-55) or as a
provider or receiver of services (Art 56-62)
Art 20 (1) TFEU – Every person holding the nationality of a Member State shall be a citizen of
the union.
To be able to take advantage of Article 45, 49 and 56 the individual needs to be engaged in
an ‘economic activity’.
o In Jundt,1 which concerned the application of Article 56, the court held that
economic activity is a decisive factor which brings an activity within the ambit of the
provisions of the treaties.2
Under Article 21 (1) TFEU non economically active citizens can enjoy rights to movement and
residence as stated by the CJEU in Baumbast 3 – ‘the [treaties do] not require that citizens of
the Union pursue a professional or trade activity, whether as an employed or self-employed
person, in order to enjoy the rights provided in Part Two of the [TFEU] on citizenship of the
Union’.4
o See Jacobs AG in Garcia Avello Case C 148/02 para 61 & C – 378/97 Wijsenbeek
[1999] para 85 - ‘ Article [21] does not simply enshrine the constitutional terms of
the acquis communautaire as it existed when it was inserted into the [Treaties] and
complement it by broadening the category of persons entitled to freedom of
movement to include other clauses of persons not pursuing economic activities.
Article [21] also enshrines a right of a different kind, a true right of movement,
stemming from the status as a citizen of the union, which is not subsidiary in relation
to the European unification, whether economic or not.’
Material and Territorial Scope
Individuals must move from one Member State to another state in order to fall within the
material scope of Article 45, 49, 56 5 and 21(1).6 – C – 184/99 Grezlczyk [2001] ECT I – 6192
para 32.
1
Case C – 281/06 Jundt v Finanzamt Offenburg [2007] ECR I – 12231, para 33.
2
The Substantive Law of the EU pg 227
3
Case C – 413/99 [2002] ECR I - 7091
4
Substantive Law of the EU pg 227
5
Substantive Law of the EU pg 227
6
Substantive Law of the EU pg 228
, Movement can involve an individual moving their residence to another member state,
usually for employment.7 – C 53/81 Levin [1982] ECR 1035 – or in the case of frontier
workers, retaining their residence in the home state and working in the host state – e.g. C
213/05 Geven v Land Nordrhein-Westfalen [2007] ECR I 6347
The requirement of an inter-state element is made explicit in Article 49 which refers to ‘the
freedom of establishment of nationals of a member state in the territory of another member
state’.8
Article 45 – Right to free movement
Free movement of ‘workers’ – Article 45 (1)
o Definition: A person who performs services for a certain period of time for and
under the direction of another person in return for which he receives remuneration
– Lawrie-Blum
o There is no definition of worker in the Treaties, the court has insisted that it be given
a wide interpretation based on the objective criteria to ensure uniform
interpretation across the member states.9 10
o In essence where union nationals are in a relationship of subordination they are
workers.11
Employment activities should be effective and genuine, not marginal and ancillary – Levin
o In Kempf the court found that the work of a part time music teacher was not on
‘such a small scale as to be purely marginal and ancillary even though his income
was supplemented by public funds.12
Those seeking work are also considered as ‘workers’ – C 85/96 Martinez-Sala v freistaat
Bayern [1998] ECR I 2691 para 32
o While the period allowed for work-seekers to remain in the host state depends on
the rules of that state, they must be given at least three months to look for work,
although if they are dependent on social security they may be asked to leave
(Declaration of the council accompanying Directive 68/360). 13
Article 45 (1) states that workers should enjoy the right of free movement which according
to Article 45 (2) includes 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 (3) then adds that free movement comprises the right
to: 14
o Accept offers of employment actually made
o Move freely within a member state for this purpose
o Stay in a member state during employment
o Stay in a member state after employment
7
Substantive Law of the EU pg 228
8
Substantive Law of the EU pg 228
9
C 75/63 Unger v Bestuur der Bedrijfsvereniging voor Detail Handel en Ambachten [1964] ECR 1997
10
Substantive Law of the EU pg 266
11
Substantive Law of the EU pg266
12
Substantive Law of the EU pg 267
13
Substantive Law of the EU pg 268
14
Substantive Law of the EU pg 269
, In addition the Court has recognised that workers have the right, derived directly from the
Treaties, to leave their state of origin to enter the territory of another Member State and to
reside and pursue an economic activity there. 15
Workers enjoy rights under Article 45 TFEU the CRd and the Regulation 1612/68. Often the
courts will interpret the Treaties in light of the secondary legislation. Therefore, a migrant
worker can start working before completing the formalities to obtain any residence
certificate because the right of residence if a fundamental right derived from the Treaties
and is not dependent upon the possession of a residence permit (C 278/03 commission v
Italy (recruitment of teaching staff) [2005] ECT I 3747)
Regulation 1612/68 was originally designed both to facilitate the free movement of workers
and their families and to ensure their integration into the community of the host state.
Access to employment: Article 1 of Regulation 1612/68 reiterates the substance of Article
45: any national of a Member State ‘has the right to take up an activity as an employed
person, and to pursue such activity, within the territory of another member state’ enjoying
the same priority as a national. The worker may conclude and perform contracts of
employment in accordance with the laws of the host state . Any provisions which
discrimination against foreign nationals or hinder foreign nations from obtaining work are
not permissible.16
Examples of ‘workers’
o Professional Footballer – Bosman
o Trainee Teacher – Lawrie-Blum
o Part-time worker – Levin.
Article 7 (3) Citizens Rights Directive also makes provisions for Union citizens who are no
longer workers (or self-employed) to retain worker status in four situations
o Where the individual cannot work because s/he is temporarily incapacitated through
illness or accident (C 43/99 Leclere [2001] ECR I – 4265).
o Where the individual has become involuntarily unemployed after having been
employed for me than one year, and has registered as a job-seeker with the relevant
employment office.
o Where the individual has become involuntarily unemployed after having completed
a fixed term contract of less than one year or after having become involuntarily
unemployed during the first twelve months and after having registered as a job-
seeker with the relevant employment office (in this situation the status of worker
can be retained for no less than six months)
o Where the individual embarks on vocational training (unless the individual is
involuntarily unemployed, the retention of the status of worker requires the training
to be related to the previous employment).
There can be no discrimination based on nationality in regards to:
o Employment; remuneration; other conditions of work and employment
Direct discrimination: Migrant worker is treated less favourably than a national worker –
Breach of Article 45 (1)
o Bosman – ‘3 + 2’ rule held to be directly discriminatory
o Commission v Italy – Privacy security work could only be carried out by Italian
security firms, employing Italian nationals – Direct discrimination.
15
C 363/89 roux v Belgium [1991] ECR I 273 para 9; Substantive Law of the EU pg 269
16
Substantive Law of the EU pg 270
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