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Problem 4 (European Union Law)
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This document contains the learning objectives of problem 4 (European Union Law). In English.
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PROBLEM 4Learning objectives:
1. What is the free movement of persons?
a. What is the free movement of workers?
b. What are the justifications and limitations?
2. Solve the problem: Can Marie and Alejandro move together to the Netherlands? (niet uitgewerkt)
Literature:
- E-lesson: free movement of persons part I: EU citizenship
- E-lesson: free movement of persons part II: workers
- Webcast on basic notions part I
- Webcast on basic notions part II
Case law:
Lawrie-Blum-case (C-66/85) Baumbast-case (C-413/99)
Levin-case (C-53/81) Bosman-case (C-415/93)
Trojani-case (C-456/02) (Only rule) Gebhard-case (C-55/94)
Lair-case (C-39/86) (Only rule) Commission v. Belgium-case (149/79) (Only rule)
Antonissen-case (C-292/89) Reyners-case (2/74) (Only rule)
Lebon-case (C-316/85) (Only rule) Sotgiu-case (152/73) (Only rule)
Collins-case (C-138/02) (Only rule)
1) WHAT IS THE FREE MOVEMENT OF PERSONS?
a. What is the free movement of workers?
The overview here shows the distinction between
economically active and economically passive
citizens.
Here you can see that another distinction can be
made.
• When it comes to economically active
citizens, the free movement of persons
consists of:
1. The free movement of workers
(Article 45 TFEU) and
2. The freedom of self-employment
/establishment (self-employed
natural persons falling under Article
49 TFEU and companies/legal
persons falling under Articles 49/54
TFEU).
The rights mentioned in Article 21(1) TFEU are independent from the free movement of workers and
establishment (see overview).
The free movement of workers (Article 45 TFEU and further)
1
, The free movement of persons has an economic rationale behind it. The idea was to assist people
wishing to work in a Member State other than their Member State of origin. Therefore, the concept was
initially confined to economically active persons.
Article 45 TFEU is given further substance by the Workers Regulation (Regulation 492/2011) and the CRD
(Directive 2004/38, the Citizenship Rights Directive, CRD).
• Article 45 TFEU and the Workers Regulation give workers the right to move freely across the EU to
seek and take up employment in another Member State on the same terms as nationals.
• The Workers Regulation sets out specific rights for workers and their families, outlaws restrictions
to the access of a worker to the labor market of the host State, and confirms that the principle
of equal treatment shall apply in an employment relationship (Article 7 Regulation)
Personal scope: workers
The personal scope of a worker is decided in the Lawrie-Blum case (para. 17): ‘That concept must be
defined in accordance with objective criteria which distinguish the employment relationship by
reference to the rights and duties of the persons concerned. The essential feature of an employment
relationship, however, 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’.
• The definition above entails that three requirements need to be fulfilled to be a worker:
1. The person needs to live in one State and work in another
2. The person has to be under the direction of someone else
3. There needs to be remuneration
§ What form of remuneration is allowed? → Levin-case
• The case concerned a British citizen that wanted a residence permit;
he was not entitled to the residence permit on grounds of not having a
full-time job. The Court ruled that a worker is a person that is
remunerated for an effective and genuine activity. This entails that the
working hours and the level of remuneration is irrelevant, except where
the activity is so small that it is ‘purely marginal and ancillary’ (paras.
15-17). The benefits in kind could be considered remuneration as long
as the work done was ‘capable of being regarded as forming part of
the normal labor market’ (Trojani case)
§ Does the concept of workers include former workers? → Lair-case (paras. 36-
37)
• Quasi workers fall under the scope of workers if there is some continuity
with the previous occupational activity.
• The inclusion of former workers who seek future employment under the
scope of Article 45 TFEU was decided in the Antonissen case (paras.
11-13; 21). However, Member States may adopt a temporal
restriction to this right; the nationals are able to reside in the host
Member State only for a reasonable time. In principle, a period of six
months is considered a reasonable period (see Article 14(4)(b) CRD).
Given the special circumstances of an individual case, it can also be a
longer period than six months provided that there is evidence of
continuation of the employment search and 'genuine chances of
being engaged' (para. 21).
Certain rights established in the case law discussed above have now been codified in the CRD. As
regards unemployed people, Article 7(3) CRD now regulates the rights of persons that are involuntarily
unemployed (b and c).
The EU has allowed for material restrictions as well, meaning limitations to the actual rights that
jobseekers were entitled to. In the Lebon-case (para. 26), it was decided that the restriction of those
who move in search of employment qualify for equal treatment only as it regards access to
employment in accordance with Article 45 TFEU.
2
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