Free Movement of Persons – Revision
There is a significant and quite dramatic distinction between those individuals within the EU who are economically
active, and those who are merely union citizens, as they are conferred with extremely different rights.
• This rigid/demarcation or distinction reflects an inherent economic paradigm of the Free Movement of
Persons, premised upon the logic that it fundamentally permits labour mobility which enables the optimal
allocation of resources and enhances comparative efficiency.
• Thus, subsequently, greater rights are conferred to those who work, than those who are unemployed.
The Free Movement of Persons is a deeply sensitive, contested issue within the EU, as powerfully
demonstrated by Brexit, because individualistic member state aspirations, often seemingly collide with
collective visions of welfare, employment and the internal market.
• Increasingly, the notion of extending welfare benefits to foreign workers is contested, because it is
stimulating considerable infrastructural issues within the MS and can operate to ignore the interests
of nationals.
• This is reflected by the Brexit vote, which as Theresa May 2019 claimed the public message is that ‘Brexit
must mean control of the number of people who come to Britain from Europe’, this is ‘because while
controlled immigration can bring great benefits…when the numbers get too high, public support for the
system falters’.
• Nonetheless, this institutionalising sectoral immigration is extensively difficult to control as the employment
market is extremely fluid, and thus difficult to control.
Article 45 TFEU is premised upon indirect and direct discrimination:
• Article 45 of the TFEU outlines that the ‘freedom of movement’ for workers ‘shall entail the abolition of any
discrimination based on nationality between workers of the Member states’, which shall further ‘entail the
right to accept offers of employment, to move freely within the territory of the Member states’ and ‘to stay in
the MS for the purpose of employment in accordance with the provisions governing the employment of
nationals’.
• Therefore, Article 45 is significantly beneficial and generous towards workers, as it confers both the right of
non-discrimination and equal protection once working inside the country.
- This reflects an economic paradigm of FM of Persons, rather than a merely social one.
• The scope of Article 45 is demonstrated in Commission v France C-167/73 → where direct discrimination
was held to constitute a breach of FM of Persons.
• Indirect discrimination is also within the material scope of Article 45, as illustrated in O-Flynn C-237/94 →
where the ECJ held that rules which are likely to disadvantage non-nationals, are also caught by Article 45.
The scope of Article 45 TFEU, extends to market access – therefore, the purpose is not merely to prevent
protectionist policies and applies to indistinctly applicable rules:
• Chalmers (2015) → ‘The court has been strict and has been prepared to review even non-discriminatory
national rules’.
• The ECJ in Bosman (C-415/93) 1995 → adopted a teleological approach towards Article 45, reaffirming
that the objective of Article 45 is to facilitate free movement, which entails the right to enter the labour market,
such that the UEFA regulation imposed a disproportionate interference with the individuals capacity to
access markets, and thus will be within the scope of Article 45 TFEU.
- Similar to Cassis, the ECJ holds that Article 45 TFEU is not just concerned with preventing
discrimination, but also about restricting those rules which prevent the capacity to enter the job market
in the first place – market access.
• The ECJ’s approach was reiterated in Commission v Denmark (C-462/02) → ‘the manner in which an
activity is pursued is liable to also affect access to that activity’ such that ‘legislation which relates to the
conditions in which an economic activity is pursued may constitute an obstacle to freedom of movement’.
- This is exceptionally wide, as it protects a European worker from discrimination, rules which restrict
market access and regulates conditions of which the employment occurs.
• This raises similar concerns to the scope of Article 56 TFEU, in which A-G Tizzano in Caixa Bank (C-
442/02) argued that → Interpreting the Freedom, ‘to apply to any measure that makes the exercise of free
movement less attractive’ permits ‘economic operators to abuse’ Article 56 TFEU and is ‘tantamount to
bending the Treaty to the purpose for which it was not intended’ because this would ‘establish a market
without rules’, rather than merely without borders.
• Chalmers (2015) → Extending Article 45 to cover non-discriminatory restrictions on the pursuit of economic
activity ‘have significant market liberalising effects’ but ‘also result in the extension of the reach of these
Articles into almost all area’s of regulation of economic life’ – very invasive.
, - ‘There is a significant danger of overreaching here, with EU Law being perceived, particularly from a
local perspective, as being both excessively deregulatory and excessively intrusive’.
- Therefore, ‘its case law on non-discriminatory restrictions on the pursuit of economic activity has been
contradictory and uncertain.’
Chalmers (2015) → ‘The Court of Justice may be moving towards a position that in substance is similar to the
position concerning the free movement of goods
The determination of what constitutes a ‘worker’ under Article 45 TFEU, is of crucial importance and highly
contested – as this distinction confers a variety of rights on individuals, as compared to unemployed
European citizens.
• The ECJ have judicially conceptualised what constitutes a ‘worker’ – and have had a large amount of
discretion in making this determination. This is because there is no treaty definition of a worker.
• The ECJ held in Trojani C-456/02 → that ‘the concept of the worker…has a specific union meaning and
must not be interpreted narrowly’, affirming that it is not within the discretion of Member States to determine
what they define a worker to be and is purely a European definition.
- The ECJ is demarcating the distinction between a worker and non-worker.
• The ECJ in Trojani C-456/02 outlines that → “Any person who pursues activities which are real and genuine,
with the exclusion of activities purely marginal and ancillary, must be regarded as a worker.” And further
held that ‘the essential feature of an employment relationship is that, for a certain period of time, a person
performs services for and under the direction of another person in return for which he receives remuneration’.
- Therefore, a European worker is classified as someone who has a real and genuine job, which requires
both subordination and remuneration.
• The court has added further qualifying conditions to the constitution of a ‘worker’:
- As highlighted in Hartmann C-212/05 → a transboundary element, in either residence or employment,
is necessary obtain European Free movement rights.
- The activity must be part of the ‘normal labour market’ as emphasised in Bettray C-344/87 → The ECJ
held that rehabilitation work did not constitute employment. Notably, the court premised its argument
upon the economic nature of the job.
- Nonetheless, in Steymann C-196/87 → the court was considerably generous, holding that remuneration
could be in kind and need not be financial.
- In Kempf (C-139/85) → The court held that an individual merely has to work 8 hours a week, to obtain
rights, this was irrespective of the fact that the individual learned so little that she was forced to apply
for benefits.
• Chalmers (2015) → ‘The definition of worker which emerges from these cases is unusual in EU Law in not
taking account of the personal circumstances of the individual, instead imposing a fixed test’.
- Whilst ‘this may seem quite reasonable from an economic point of view’, it ‘fits uneasily with current anti-
discrimination law which generally requires recognition of the particularly position of disabled people in
the market’.
• O’Brien (2009) → Argues ‘the application of the same ‘worker’ test is inappropriate and actually
discriminatory’, this is because ‘it squeezes social concerns out of the definitional process’
• NicShuibuhne (2018) → ‘There should be a place for national criteria’ in the determination of a worker ‘but
these criteria should be subject to EU legal parameters – in particular, they must be applied without any
distinction on nationality grounds’.
- Significantly, ‘sharing leadership also means that Member States would rightly share more of the
criticism for their choices’.
Workers are conferred with a multiplicity of rights- which is both hugely generous and advantageous,
particularly so as the logic underlying this notion is being increasingly stretched by the courts, beyond the
boundaries of acceptability.
• A migrant is entitled, by virtue of Article 45(2) TFEU to the same welfare benefits in a MS are the nationals
who are working there.
• This is reinforced by Article 7 of Regulation 492/2011 – which outlines that a ‘Worker’ may not ‘be treated
differently from national workers by reason of his nationality in respect of any conditions of employments
and work’ and shall ‘enjoy the same social and tax advantages as national workers’.
- Thus, a European worker should have equal access to welfare benefits, from the welfare state of the
country they work in.
• This was interpreted considerably broadly in Even C-207/78 → in which the ECJ held that this includes
welfare benefits ‘whether or not linked to a contract of employment’, which are granted ‘by virtue of mere
fact of their residence on the national territory’.
