● Paul Craig and Gráinne de Búrca, EU Law: Texts, Cases, and Materials
(6th edn, OUP, 2015), ch. 21.
The Free Movement of Workers has existed to some degree since
the Treaty of Rome, however the entitlements that come with the
status of “worker” have been expanded over the decades by both
the Court and through legislation.
Freedom of workers is different from citizenship definition
Different rights attached to them
Jobseekers
Comtempary debate of EU migration
Article 45 TFEU:
1. Freedom of movement for workers shall be secured
within the Union.
2. Such freedom of movement shall entail 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.
3. It shall entail the right, subject to limitations justified
on grounds of public policy, public security or public
health:
a. to accept offers of employment actually made;
a. to move freely within the territory of Member
States for this purpose;
, b. to stay in a Member State for the purpose of
employment in accordance with the
provisions governing the employment of
nationals of that State laid down by law,
regulation or adminis-trative action;
c. 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.
2. The provisions of this Article shall not apply to
employment in the public service.
Directive 2004/38/EC on the right of citizens of the Union and their
family members to move and reside freely within the territory of the
Member States (Citizens Rights Directive) fleshes out the detail and
substance of free movement of persons. (Covers both)
Definition of ‘worker’
● Case 75/63, Hoekstra [1964] ECR 177.
9 Definition of a ‘worker’ is a question of community,
and not domestic law.
9 The concept of ‘wage-earner or assimilated worker ' has thus a community
meaning, referring to all those who, as such and under whatever description,
are covered by the different national systems of social security.
9 Obviously necessary for ‘worker’ to have a community meaning, otherwise
MS could unilaterally exclude people from the application of Art. 45
TFEU.
● Case 53/1981, Levin [1982] ECR 1035
, 9 Mrs. Levin was a British citizen, married to a South
African non-EC national. Resident in the Netherlands.
She takes up part-time employment as a
chambermaid, working around 20 hours a week.
Support that she received from her husband brought
her up to the minimum amount of subsistence.
Despite this, application for a residence permit
refused.
9 Netherlands:
● Means of subsistence must come from employment; (not enough
income to survive)
● She only took the job to gain a residence
permit, so it wasn’t genuine employment.
9 Held:
● Member States cannot unilaterally restrict the definition of
workers.
● It cannot be argued that you’re not a worker
just because you work part time and don’t meet
the minimum amount to subsist.
● You cannot look at the motivation.
9 AG Slynn: “the right enjoyed by workers is dependent
on its being shown that the work in the Member State
is a genuine and substantial purpose of such national
although it need not be the chief purpose.”
9 Court:
● right to free movement for workers covers “effective and
genuine activity”;
● “the exceptions to effective and genuine
activities were those ‘activities on such a small
scale as to be regarded as purely marginal and
ancillary.”
Must a worker be self-supporting?
● Case 139/85, Kempf [1986] ECR 1741
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