Summary
Summary free movement of persons: workers and quasi-workers; EU citizenship; cross-border rule
- Course
- Institution
lectures 5 and 6 plus tutorial
[Show more]
Seller
Follow
fleurdonders
Reviews received
Content preview
Ch 13: free movement of natural persons and citizenship of the UnionLecture 5, 6 + tutorial (ZIE BENEDEN STEPS): FM of persons: workers and quasi-workers
(26(2)), EU citizenship, cross-border rule
Economically active persons
o Employed
(art. 45 p. 40 notes+ 18(1) + reg. 492/2011 + dir. 2004/38) (art. 20-25)
o Self-employed [freedom of establishment] (art. 49 + 18) (art. 20-25)
Non-economically active persons (residual art. 20-25 + directive)
Art. 20 & 21: FM of persons as ‘general’ EU citizenship right
What type of discrimination? (Discrimination violates art. 45 and 18 TFEU and):
Article 45 Direct effect
Direct discrimination: regulation FM Workers (zie case law pack p. 110):
o Art. 7(1): no discrimination (treated less favorably/differently) by reason of
nationality (Bosman)
o 7(2): shall enjoy same social and tax advantages as national worker (O’Flynn)
Limitations justified only if proportionate
o 7(3): access to vocational training
o 8: membership in trade unions
o 9: access to housing (same benefits to non-nationals)
o 1(1)(2): right to take up employment in territory of another MS (host country
rule) with same priority as that MS nationals
o 2
o 3(1): discrimination with regards to employment
Indirect discrimination:
o Rule that is neutral in terms of nationality, but affects non-nationals more
severely than MS nationals (conditions of employment more easily satisfied
by MS nationals/gives advantage to them) (art. 2, 3(1), 7 Reg.)
o EXCEPTION: language conditions lawful when linguistic knowledge is required
by reason of the nature of the post to be filled. (art. 3(1)(b)) Language
requirements must be objectively clear (Angonese)
Non-discriminatory/indistinctively applicable measure (Bosman)
o Provisions which preclude/deter a national from leaving his country of origin
to exercise his right to FM constitute an obstacle to that freedom (even if they
apply without regard to nationality of workers concerned
Exceptions: 1. rules pursue legit aim 2. Justified by pressing reason of
public interest
Restriction art. 45: limitations justified for public policy, public security or public
health
Exception public service art. 45(4)? (Commission v Belgium) individual assessment
required/narrow interpretation!
o Direct/indirect participation in powers conferred by public law
o Special relationship of loyalty to State
o Responsibility for safeguarding general interests of State
Who is a worker? CJEU monopoly of interpretation (Lawrie-blum)
o Stability (employment certain period of time)
, o Direction (perform service under direction of another person)
o Remuneration
Self-employed? (Gebhard)
o Permanent/semi-permanent settlement in another MS
o Provides service in professional capacity in ‘stable’ and ‘continuous’ basis (art.
49)
DISTINCTION: between service provision ‘stable and continuous basis’
(49) and temporary (art. 56)
Art. 49: case of freedom of establishment host State is
principal regulator
Art. 56: home State is principal regulator
o No subordination
o Under person’s own responsibility (direction)
o In return for remuneration
o (no illegal activity)
Part-time workers
o Covered by art. 45
(even when income below minimum level of subsistence (Levin) (may
supplement income with other employment or personal resources),
Also if not able to meet needs out of own income (Kempf)
o Limits: activity must be “effective and genuine and not of such a small scale as
to be considered as purely marginal and ancillary” (Levin)
o Decisive factor: Is type of activity considered part of normal job market?
(Trojani)
FM quasi-workers (currently not employed)
o After employment right to retain status of worker
(art. 45(3)(a) + 7(3) CD. (case law pack p. 112) retain worker status
(see circumstances)
o Before employment right of jobseekers
(first time) jobseekers
(art. 45(3)(a) art. 6(1) dir. 3 month residence).
After 3 months (ANtonissen) right to reside to a reasonable
time to find a job (6 months), after that, no automatic
expulsion (14(4)(b) dir.) + reasonable perspectives job
Right to access jobseeker allowance? (Collins)
Genuinely seeking job, therefore worker and entitled to claim
same benefits as nationals related to employment
Must be genuine link between jobseeker and employment
market of state
(reg. art. 7(2) + 5): same social and tax advantages as national
workers + receive same assistance as nationals for seeking
employment
(dir. 7(3) + 24(1)(2): right of residence family+ equal treatment)
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller fleurdonders. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $6.32. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
76669 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now