Free Movement of Workers
Free Movement of Workers
Free Movement of Workers
FREE MOVEMENT OF
WORKERS
ARTICLE 45 OF THE TFEU guarantees the right of free movement of workers:
Such freedom of movement shall entail the abolition of any discrimination
based on nationality between workers of the Member States as regards
employment, remuneration and other conditions of work and employment
Definition of a Worker
The European Court of Justice (ECJ) has now and then insisted that the definition of
a worker is a matter of EU law rather than National law.
In HOEKSTRA, the ECJ position on workers is that:
any person who pursues employment activities which are effective and
genuine to the exclusion of activities on such a small scale as to be
regarded as purely marginal and ancillary is treated as a worker
The ECJ in LAWRIE-BLUM held that:
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
For an economic activity to qualify as employment under ARTICLE 45, rather than
self-employment under ARTICLE 49 OF THE TFEU, there must be a relationship of
subordination. There is however, no single EU concept of a worker and it varies
according to the context it arises under EU law.
The practice must merely constitute as an economic activity as seen in Bosman.
Moreover, the irregular nature of remuneration is considered irrelevant as in R v
Ministry of Agriculture, Fisheries and Food.
The concept of remuneration was and hence of economic activity was pushed a bit
further in Steymann. It was considered that the fact, the work might be seen in
conventional terms as being unpaid did not mean that it was not effective economic
activity. Remuneration in kind is also acceptable.
Moreover, Article 45 would apply even where the work was done outside the
Community, so long as the legal relationship of employment was entered within the
Community: WALRAVE AND KOCH.
The ECJ further extended this ruling in BOUKHALFA, that the Article applied also to the
employment of a Member State national which was entered into and primarily
performed in a non-member country in which the national resided.
Article 45 are not only of vertical direct effect as in WALGRAVE AND KOCH and BOSMAN,
but are also horizontally applicable to the actions of individuals who do not have the
power to make rules regulating gainful employment as per ANGONESE CASE.
The wide interpretation shows that it is a fundamental freedom with great relevance
Part-Time Workers
All workers in the Member States have the right to pursue the activity of their
choice within the Community, irrespective of whether they are permanent, seasonal
or frontier workers or workers who pursue their activities for the purpose of
providing services.
Even part time employment also falls within the scope of workers who are seeking
to supplement his earnings below the subsistence level as per LEVIN and KEMPF.
However, their activities must satisfy the requirements in HOEKSTRA.
Purpose of Employment
The purpose for which the employment is undertaken is not relevant in determining
whether a person is a worker. All that is required is that the employment is genuine
and not marginal so as to benefit from ARTICLE 45. However, there are cases in which
some account has been taken of the purpose of the employment. This concept is
exemplified in BETTRAY.
The crucial factor is whether the work is capable of being regarded as forming part
of the normal labour market: TROJANI V CPAS.
An EU national who undertakes work for a temporary period purely as a means to
qualify for an educational course will not be entitled to all the same advantages as a
fully-fledged worker under EU law as per the ECJ in BROWN.
The ECJ reiterated the importance of objective factors such as hours of worked and
remuneration over other subjective factors such as motive and conduct in NINNIORASCHI.
Job Seekers
A job seeker also falls within the definition of a worker as per the ECJ in ANTONISSEN.
Member States retain the power to expel a job-seeker who does not have prospects
of finding work after a reasonable period of time. This concept was followed in
COMMISSION V BELGIUM and LEBON.
Direct Discrimination
It entails different treatment both in law and in fact of foreigners in a Member State.
A good illustration of direct discrimination is seen in REYNERS CASE.
In COMMISSION V FRENCH REPUBLIC, the ECJ ruled that ARTICLE 45 was directly
applicable in the legal system of every Member State, and would render all
contrary national law inapplicable. Further, a state can be held in breach of ARTICLE
45, where the discrimination is practiced by any public body as in COMMISSION V ITALY.
Indirect Discrimination
Indirect Discrimination entails equal treatment in law but different treatment in fact
i.e. in practice, a rule or criteria that is neutral at first sight, but which
nevertheless has a detrimental effect or a detrimental impact primarily on
foreigners as seen in ALLURE AND COONAN.
ARTICLE 45 prohibits any condition of eligibility for a benefit which is more easily
satisfied by national than by a non-national worker.
The ECJ has relaxed the requirements for proof of indirect discrimination in OFLYNN.
In order for indirect discrimination to be established it was not necessary to prove
that a national measure in practice affected a higher proportion of foreign workers,
but merely that the measure was intrinsically liable to affect migrant workers more
than nationals.
Indirect Discrimination also includes benefits that are made conditional, in law or
fact, on residence, place of origin requirements, or place of education requirements
that can more easily be satisfied by nationals that non-nationals: UGLIOLA. This was
clearly illustrated in COMMISSION V BELGIUM.
Non-Discriminatory Measures
The ECJ has ruled that even non-discriminatory restrictions may breach the Treaty if
they constitute an excessive obstacle to freedom of movement: BOSMAN CASE.
A good illustration of the application of ARTICLE 45 to such restrictions can be seen in
COMMISSION V DENMARK and VAN LENT.
Neutral national rules could be regarded as material barriers to market access only
if it were established that they had actual effects on market actors similar to
exclusion from the market: GRAF.
Internal Situations
ARTICLE 45, does not prohibit discrimination in a so-called wholly internal situation.
This has the effect that national workers cannot claim rights in their own Member
State, which workers who are nationals of other Member States could claim there as
seen in SAUNDERS.
A worker will be able to use ARTICLE 45 against his or her own state where they are
discriminated against after returning to work in their own State having been
previously and resided in another Member State before: DE GROOT.
Article 45(3)
It contains exceptions to discriminatory provisions on grounds of public policy, public
security and public health Tsakouridis Case
Objective Justification
Justifications for indirect discrimination are broad, and not confined to the exception
set out in the Treaty or secondary legislation as seen in SCHUMACKER.
The ECJ close scrutinizes claims that attempt to justify the restrictions as evidenced
in TERHOEVE.
Regulation 492/11:
could invoke the social advantages provision of ARTICLE 7(2) to claim entitlement to
any advantage available to improve their professional qualifications and social
advancement, such as a maintenance grant in an educational institution not
covered by ARTICLE 7(3).
However, in LAIR it was held that this interpretation is subject to the requirement
that there must be a link between the previous work and the studies in question.
This was reiterated in BROWN with the addition that the employment must not be
ancillary to the main purpose of pursuing a course of study.
The one exception that is permitted can be found under ARTICLE 7(3)(D) OF DIRECTIVE
2004/38, where a worker involuntarily unemployed was obliged by conditions on the
job market to undertake occupational retraining in another field of activity. Moreover,
under ARTICLE 35 OF DIRECTIVE 2004/38, Member States may refuse or withdraw rights
under the Directive in the case of abuse of rights or fraud.
This is evidenced by the ECJs Judgements in various cases: LEBON; REED; DIATTA;
SINGH; and BAUMBAST.
residence card.
ARTICLE 4: requires Member States to grant citizens and their families the right to
leave their territory to go and work in other Member States simply on producing an
identity card or passport of at least five years validity. No visa requirement may be
imposed.
ARTICLE 5: sets down conditions for the right to enter another Member State i.e. all
the documents, to have them brought to them, or to prove their right of residence
by other means as per MRAX V BELGIUM.
The ECJ in METOCK clarified that the DIRECTIVE 2004/38S application is not conditional
on the family member of a Union citizen having previously resided in a Member
State.
The directive furthermore provides for nationals of non-member countries who are
family members of a Union citizen.
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ARTICLES 19-21:
regulates administrative formalities. A document certifying
permanent residence is to be issued as soon as possible to EU nationals who have
verified their duration of residence. Non-EU national family members who enjoy a
derivative right of permanent residence are to be given a permanent residence
card, which is to be automatically renewed after every ten years and the validity
will be not be affected by the absence of less than two consecutive years.
ARTICLES 22-26: govern conditions under which the right of residence, including the
right of permanent residence, is to be enjoyed. It is to cover the whole of the
territory, and includes the right of equal treatment with nationals of the host state
within the scope of the Treaty, subject to such exceptions as are provided for by the
Treaty or in secondary legislation.
RUTILI.
The substantive and procedural protection for individuals subject to an expulsion
order are now set out in ARTICLE 28 OF DIRECTIVE 2004/38.
ARTICLE 28(1): requires that before making an expulsion order the Member State
must take into consideration the period for which the individual has stayed the host
Member State, his age, state of health, family and economic situation, social and
cultural integration and the extent to his links with the country of origin.
ARTICLE 28(2): provides enhanced level of protection to EU citizens, stating that they
may only be expelled for serious grounds of public policy or public security.
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ARTICLE 28(3): provides for an even more stringent level of protection for a minor or
an EU citizen residing in the host State for more than ten years stipulating that they
can only be expelled on imperatives grounds of public security.
LAND BADEN CASE holds that the ECJs interpretation of ARTICLES 27 AND 28 OF THE
DIRECTIVE and the conditions must be satisfied for an expulsion to be lawful.
ARTICLE 29(1): governs the public health requirement by specifying that only
diseases with epidemic potential as defined by the relevant instruments of WTO,
and other infectious or contagious parasitic diseases subject to protection in the
host Member State will justify measures restricted freedom of movement.
ARTICLE 29(2): sets out a three-month period following arrival after which diseases
occurring cannot constitute grounds for expulsion.
ARTICLE 29(3): where there are serious indications that it is necessary Member States
may within three-months of the date of arrival, require persons entitled with a right
of residence to undergo a medical examination free of charge to certify that they
are not suffering from any disease.
ARTICLE 30: requires that the persons concerned must be notified of the decision in
such a way that they can comprehend its content and implications: ADOUI and
CORNUAILLE
ARTICLE 31: gives EU citizens the right for judicial review or appeal against the
adverse decision taken by Member States.
ARTICLE 32: provides that where someone has been validly excluded on public policy
or security grounds they may apply to have the exclusion order lifted after a
reasonable period, and no later than three years from the enforcement of the final
exclusion order, by arguing that there has been a material change in the
circumstances justifying their exclusion. States must decide on such application for
re-admission within six months, but the applicants have no right of entry to the
territory while the application is being considered.
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