European Labour and Social Security Law – Literature Notes Week 6: Coordination of Social
Security I: General Principles and Unemployment Benefits
T. Jaspers et al, European Labour Law, 2019, Chapter 2, Section 2.1-2.2 (pp.45-76) and Sections 2.5-
2.6 (pp.114-130).
2.1 Introduction
Article 45 TFEU has secured the freedom of workers, in addition to which Articles 15(3) and 21(2) of the Charter
confirmed the right to move freely and to equal treatment as fundamental rights.
2.1.1 Essential Cornerstone of the Internal Market
2.1.2 Factual and Political Development
2.1.3 Overview
2.2 Free Movement of Persons
2.2.1 Prohibited Discrimination on Grounds of Nationality and Obstacles to Free Movement
2.2.1.1 Types of Barriers to Free Movement of Workers
The equal treatment right of EU citizens is, in the first place, laud down in the directly (Collins;
Sant-Prix) and horizontally (Bosman; Olympique Lyonnais) applicable Article 45 TFEU and is
further elaborated upon in Regulation 492/2011. Three different prohibited types of barriers
to free movement of workers can be distinguished:
1. Direct discrimination: where a migrant worker is treated differently on the grounds
of that worker’s nationality. As a rule, directly discriminatory provisions can only be
justified by invoking one of the Treaty derogations of public policy, public security,
public health; or the public service exception, which are also applicable in the case of
the Regulations based on Article 45 TFEU.
2. Indirect discrimination: where an apparently neutral condition impacts
disproportionately on migrant workers, as prohibited by Article 3(1)(b) of Regulation
492/2011. This was further defined in O’Flynn as any provision of national law
“intrinsically liable to affect migrant workers more than national workers and if there
is a risk that it will place the former at a particular disadvantage”. Such measures
may be justified, under the CJEU’s case law, if (1) the measure has a legitimate aim,
(2) is appropriate to achieve that aim, and (3) does not go beyond what is necessary.
3. Measures which “hamper or render less attractive” the exercise of the right of free
movement. These are provisions that deter nationals from exercising their freedom
of movement, even if such measures apply without regard to the nationality of the
workers concerned, as defined in Bosman. In Graf, however, the Court ruled that not
every rule which may potentially discourage movement is an obstacle caught by
Article 45 TFEU. Rather, the rule needs to affect access to the employment market in
a way that is not too uncertain and indirect.
2.2.1.2 Horizontal Direct Effect
In Walrave, the CJEU ruled that the wording of Article 45 TFEU does not prevent the
provisions being applied to associations which are governed by private law. It found that
Union law must be applied in an equal manner and the fundamental free movement of
workers cannot thus be dependent upon whether working conditions are regulated by law or
by private agreements.
2.2.1.3 Language Requirements
Article 3(1) of Regulation 492/2011 permits language requirements, provided that they are
, required by reason of the nature of the post to be filled. This was explicitly confirmed in
Groener, where a Dutch national was refused a post as a lecturer in Ireland on account of her
not speaking Irish, even though teaching was conducted in English. Language requirements
must thus be applied in a proportionate and non-discriminatory manner. Next, in Angonese,
the Court first confirmed that Article 45 TFEU had horizontal direct effect. Then, it found that
the requirement for a language certificate indirectly discriminatory and disproportionate:
although demanding proof of a certain level of linguistic knowledge was justified, the
impossibility of showing this knowledge by any other means breached Article 45 TFEU.
2.2.2 Equal Treatment as Regards Employment, Working Conditions and Social Advantages
2.2.2.1 Right to Equal Treatment Regarding Access to Employment
Articles 1-6 of Regulation 492/2011 provide that an EU citizen should have the same access to
employment as a national of a Member State.
2.2.2.2 Right to Equal Treatment Regarding Terms and Conditions of Employment
Pursuant to Article 7 of Regulation 492/2011, EU nationals who move as employees to
another Member State are entitled to equal treatment with national workers as regards
remuneration, dismissal, and other labour conditions in law, laid down in collective or
individual agreements or any other collective regulation and, should they become
unemployed, reinstated or re-employed.
2.2.2.3 Social Advantages
Article 7(2) of Regulation 492/2011 also prohibits discrimination on the ground of nationality
for social and fiscal advantages. In its case law, the Court has found that this may not be
interpreted restrictively and that these advantages are all those which are generally granted
to national workers, primarily because of their objective status as workers or by virtue of the
mere fact of their residence in the country in question. Such social advantages may also be
advantages granted to family members supported by the migrating worker, even if the worker
has left the host state. However, in Geven, the Court ruled that the fact that a non-resident
worker does not have a sufficiently substantial occupation in the Member State concerned
may constitute a legitimate justification for refusing to grant a child-raising allowance.
Furthermore, the Court has also accepted that indirectly discriminatory national legislation
restricting the granting to frontier workers of social advantages within the meaning of Article
7(2) of Regulation 492/2011 where there is not a sufficient connection to the society in which
they are pursuing their activities without residing there, may be objectively justified and
proportionate to the objective pursued. In Giersch moreover, the Court suggested that
Luxembourg could make the entitlement to a study loan or the non-reimbursement thereof
subject to the condition that the student returns to that State after the studies.
2.2.3 Guaranteeing the Rights: The ‘Facilitating’ Directive 2014/54
Directive 2014/54 aims to ensure that Union workers and members of their family, as well as
employers, public authorities, and other persons concerned, are better informed about free
movement rights and responsibilities; to assist and protect Union workers and members of their family
in the exercise of those rights; and to combat circumvention of those rules by public authorities and
public and private employers.
2.2.4 Personal Scope of the Free Movement of Workers
2.2.4.1 EU Nationals in a Cross-Border Situation and their Family Members
The right to free movement as a worker depends on the worker possessing the nationality of
a Member State, though their family members can indirectly benefit from certain rights
stemming from EU free movement law, irrespective of their nationality (Article 2(2) of
Directive 2004/38). EU law on the free movement of workers only applies in situations with a
cross-border element between Member States, even though that may sometimes lead to
‘reverse discrimination’. Still, nationals of a Member State can in some circumstances invoke
