EUROPEAN UNION LAW - PROBLEM 4
1. What does the freedom of persons entail?
The Treaty envisages the free movement of persons, particularly to assist economically
active persons (market citizens or economic migrants) in working at a Member State other
than their State of origin. Economically active persons are divided into:
- ‘employed persons’: Workers = art. 45 TFEU
- ‘self-employed’ persons: Right of establishment = art. 49 TFEU (natural persons) + art. 54
TFEU (legal persons)
Art. 45 TFEU: workers have the right to move freely across the EU to seek and take up
employment in another Member State on the same terms as nationals.
Article 49 TFEU entails the same rights for the self-employed. In principle, the original idea behind
Articles 45 and 49 TFEU was to enable workers and the self-employed from Member States with
high levels of unemployment to move to Member States with high levels of employment.2
Moreover, Article 56 TFEU prohibits restrictions on the freedom to provide services within the EU
with regard to ‘nationals of Member States who are established in a Member State other than that
of the person for whom the services are intended.’
Art. 21 (1) TFEU: grants every citizen the right to move and reside freely within the
territory of the Member States.
What must be understood under:
Directly discriminatory measures: Measures which apply to persons because of their
nationality. For instance, a legislation stating that foreign workers are paid less than
native workers is (obviously) directly discriminatory.
Indirectly discriminatory measures: Measures that apply regardless of nationality but they
essentially affect only non-nationals, or the majority of those that are affected are non-
nationals. For example, Sotgiu, where the Court talked about ‘covert forms of
discrimination’, and O’Flynn, where the Court defined indirectly discriminatory measures
as ‘measures affecting essentially migrant workers, or the majority of those affected as
migrant workers’. In other words, there is no mentioning of nationality but foreigners tend
to find themselves in a worse position than nationals. In establishment, the case of Klopp7 is
an example of such a measure.
Non-discriminatory measures: Measures that apply regardless of nationality and are liable
to hinder the exercise of the fundamental freedom in question. The cases of Bosman
(workers), Vlassopoulou8 (establishment), and Säger9 (services) concern such non-discriminatory
measures.
Literature: Chapter 15, pp. 572-586 1
Cases: Laurie-Blum, Levin, Trojani, Liar, Antonissen, Lebon, Collins, Baumbast, Sotgiu,
O’Flynn, Bosman,
Articles: Brief Workers, Establishment & Services; Justifications/Derogations & Exceptions,
Diagram EU Citizenship Directive 2004/38;
