EU w5 Flashcards
Subject 1: introduction to the free movement of workers
Freedom of movement for workers is also one of the four fundamental freedoms of the European Union. Freedom of movement for workers is governed by article 45 TFEU.
Article 45
1. Freedom of movement for workers shall be secured within the Union.
- 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.
- It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose
(c) to stay in a Member State for the
purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
- The provisions of this Article shall not apply to employment in the public service.
In the Bosman case para 93 the court ruled that art. 45 TFEU can be directly invoked before a national court. Art. 45 TFEU thus has direct effect: ‘as the court has repeatedly held, freedom of movement for workers is one of the fundamental principles of the Community and the Treaty provisions guaranteeing that freedom have had direct effect since the end of the transitional period. ‘
In addition to direct effect, art. 45 TFEU also has horizontal effect. This means that article 45 TFEU can be invoked against another private party before a national court instead of the provisions always being invoked against a Member State, if it has vertical rather than horizontal effect. This was stipulated in the Angonese case par. 36: ‘consequently, the prohibition of discrimination on grounds of nationality laid down in art. 48 TFEU must be regarded as applying to private persons as well’.
Nadere uitleg:
Deze week gaat het over het vervoer van personen in het specifiek het vervoer van workers ookwel werknemers genoemd. Belangrijk is om precies te onderscheiden wat het verschil is tussen de vrije beweging van workers en bijv. de freedom to provide services. Soms kan het zo zijn dat een serviceprociver namelijk van lidstaat verhuist. Naar welke freedom kijk je dan?
Een belangrijk onderscheid tussen the freedom to provide services en the freedom of workers is dat je bij the freedom to provide services te maken hebt met zelfstandigen.
Bij the freedom of workers is er geen sprake van zelfstandigheid, maar van een afhankelijke relatie tussen de werknemer en werkgever. Dus zie je in een zaak dat je bijv. te maken hebt met een zzp’er die zich verplaatst van lidstaat om in diensten te voorzoen, kijk dan niet naar art. 45 TFEU.
Subject 1: introduction to the free movement of workers
Subject 2: Roadmap - the freedom of workers
This roadmap discusses the steps to determine whether there has been a breach of art. 45 TFEU. The steps are very similar to those you have to go through from week 2 of the material, so pay very close attention to the differences that are important for workers. The system is largely the same, so it is important in this regard that you have a good understanding of the system from week 2.
Essentie van het leerstuk:
Bij het inleidende deel van deze week is al aan bod gekomen wat the freedom of workers inhoudt en in welk opzicht het verschilt van de freedoms die al aan bod gekomen zijn in w2 van de stof.
Belangrijk: deze week gaat over personen die in een afhankelijke relatie staan tot een werkgever, maar daarnaast ook economisch actief zijn.
Een ‘worker’ of een ‘self-employed’ persoon is in dat opzicht altijd economisch actief.
Kwalificeert een persoon niet als ‘worker’ of ‘self-employed’ dan vallen deze personen niet onder art. 45 TFEU, maar ook niet onder the freedom to provide services of the freedom of establishment.
Step 1: Can EU law be applied?
If EU law does not apply to a given situation because the situation falls outside the scope of EU law, the situation can not be examined under art. 45 TFEU. The conclusion can then simply be made that EU law is not applicable and that the national rules apply in the given situation. To answer the question of the applicability of EU law, we need to look at the personal scope and the material scope.
The personal scope determines which persons fall under EU law. In the context of natural persons, they are covered by EU law if they have the nationality of an EU member State (nationals). In the context of a legal person, they fall within the scope if the legal person has its corporate seat in an EU member state.
tip:
De personal scope houdt in dat we te maken hebben met een natuurlijke persoon die de nationaliteit heeft van een EU-lidstaat of een bedrijf waarvan het hoofdkantoor zich in een EU-lidstaat bevindt.
The situation falls under the material scope if there is a cross-border element on the one hand and an economic activity on the other:
- cross-border element:
this requirement can also be called the interstate element. If it can be concluded that there is no purely domestic situation (because several member states are involved), then there is a cross-border element. - economic activity:
An economic activity occurs when activities take place in exchange for a certain remuneration.
Step 2: is this person in question a worker?
In this step, it is necessary to qualify whether the person in question is a worker. To do this, we will look at the case of Lawrie Blum. The concept of a worker can be seen as having a ‘community’ meaning. This is reflected in par. 16: ‘Since freedom of movement for workers constitutes one of the fundamental principles of the Community, the term ‘worker’ in art. 45 TFEU may not be interpreted differently according to the law of each Member State, but has a Community meaning.
‘Three requirements must be met as we read in par. 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 perfoms services for and under the direction of another person in return for which he receives remuneration.’
the three requirements for a worker are therefore:
-1 the person must perform work:
the work must be genuine and real work of a certain economic value (par. 21 Lawrie Blum case). It is therefore irrelevant whether there is a fulltime or parttime contract.
-2 the work must be done for renumeration:
If wages are paid for the activities the person performs you can say that there is some form of remuneration.
-3 the work is done under supervision of someone else:
There should be a dependent relationship with the employer. So, there should not be a self-employed person!
Step 3: The topics mentioned in art. 45 TFEU
Art. 45 (2) TFEU suggests that the case you test against, art. 45 TFEU must fit the topics mentioned in the article: ‘as regards employment, renumeration and other conditions of work and employment.’
Tip van LawBOEQS: Als de casus gaat over een beperkende maatregel op het gebied van bijvoorbeeld werkvereisten of het loon van een werknemer dan valt dit al onder de vereisten genoemd in artikel 45 (2) TFEU.
Step 4: The topics mentioned in article 45 (4) TFEU
According to art. 45 (4) TFEU does not apply to the public service: ‘the provisions of this article shall not apply to employment in the public service’.
This exception is also mentioned in the Lawrie Blum case par. 25. According to the Commission, the reservation contained in art. 45 (4) is subject to the formal condition that the post concerned should involve the discharge of functions governed by public law and the substantive condition that it should involve the exercise of powers conferred by public law and contribute to the safeguarding of the general interests of the State, those two criteria being cumulative. However, the normal activities of a teacher in State schools, and a, fortiori, in private schools do not, however, satisfy those conditions.
voorbeeld:
gaat vaak om hoge posities in het leger, rechters en ministers.
Step 5: the form of the violation of art. 45 TFEU
For this rule too, you determine the form of the violation of art. 45 TFEU. The form of the violation determines which exceptions can apply:
- Direct discrimination:
when a measure is directly based on the nationality of a natural person or company (legal person), we speak of direct discrimination - indirect discrimination:
when a measure is not directly based on nationality, but has the effect of affecting individuals or companies of a different nationality more severly. - a restriction:
according to Bosman case, par. 96 and 114, an obstacle to the free movement of workers is also a violation of art. 45 TFEU. an obstacle can not be characterized as direct or indirect discrimination, but as hindering the internal market.
Step 6: can the violation of art. 45 TFEU be justified:
situation 1: direct discrimination, indirect discrimination & restriction (Bosman case par. 96 and 114)
To see whether there is a statutory justification for the prohibited conduct, we look at art. 45 (3) TFEU.
The articles above provide several grounds justifying the prohibited conduct:
- public policy:
covers the protection against a genuine and sufficiently serious threat affecting one of the fundamental interests of society and may include, in particular, issues relation to human dignity, the protection of minors and vulnerable adults and animal welfare (SD par. 41). We see this also elaborated on in the Josemans case par. 62. - public security:
This concerns issues of public safety. - Public health:
This involves protecting the health of residents of member states.
To invoke one of these justifications, certain requirements must be met:
- Harmonization:
No harmonization is allowed when invoking a statutory justification. The concept of harmonization has been discussed above. - Proportionality:
The requirement of proportionality consists of three sub-requirements.
1 suitable:
The measure must be suitable in achieving the aim on grounds of official authority, public policy, public security, or public health. According to the Josemans case, a measure can be suitable if the objective is pursued in a consistent and systematic manner (par. 70).
The fact that the measure is discriminatory does not automatically mean that the objective is not attained in a consistent and systematic manner par. 76)
2 Necessary:
The measure is necessary to reach the aim and there are no lesser restrictive ways in which the aim on grounds of offical authority, public policy, public security, or public health can be established.
3 Stricto sensu:
Stricto sensu means that there must be a weighing of interests in determining if there is a justification for the measure restricting the freedom of workers.
Situation 2: Indirect discrimination and restriction (Bosman par. 96 and 114)
In case we deal with indirect discrimination, or a restriction based on the Bosman case, the rule of reason can form a justification on top of the statutory justifications we discussed above.
The rule of reason can form an exception:
- there can be no direct discrimination:
the rule of reason exception does not extend to measures that contain direct discrimination.
- there must be a reason of public interest also called a legitimate aim:
an economic aim can not be seen as a legitimate aim. The aim must also objectively be determined. For the rule of reason exception, it is not required that the legitimate aim must be on grounds of public policy, public security or public health.
proportionality
- Suitable:
- Necessary: for the definition of necessary we refer to the definition above
- Stricto sensu: for the definition of stricto sensu we refer also to the definition above
nadere uitleg:
Het systeem van uitzonderingen in het Europees recht, ook wel justifications genoemd, hangt af van de verboden actie die plaatsvindt. Dit zagen we ook al in stof w2. In het systeem kan je terugvinden dat de rule of reason niet toepasbaar is op directe discriminatie. In het kader van indirecte discriminatie en een beperking op grond van de Bosman case kijken we voor uitzonderingen zowel naar de wettelijke uitzonderingen als naar de rule of reason. Loop voor deze verboden acties dus altijd beide langs. In het kader van directe discriminatie kan alleen een wettelijke uitzondering een justification opleveren. De rule of reason loop je voor directe discriminatie dus niet langs.
Let op:
Reg 492/2011. Belangrijk is dat deze regulation niks afdoet aan het bovenstaande stappenplan. De regulation bevat slechts aanvullende bepalingen en moet worden geïnterpreteerd naast art. 45 TFEU. Een voorbeeld zien we terug in art. 7 van de regulation waarin discriminatie op grond van sociale zekerheid is geregeld in het kader van arbeidsvoorwaarden.
Subject 2: Roadmap - the freedom of workers
Subject 3: European Citizenship art. 21 TFEU
In recent weeks we have been talking about the single market and freedoms. The fact that our country is a member of the European Union gives us both a Dutch identity and a European Union identity. The identity that every citizen of a member state has brings with it certain rights.
Restrictions on these rights are contrary to European Union law. European citizenship, as laid down in art. 21 (1) TFEU, can facilitate freedom of movement between Member States.
Art. 21 TFEU
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
Nadere uitleg:
Als je in je paspoort kijkt zie je het lidmaatschap van de EU terug. Je hebt dus door je NL nationaliteit ook de nationaliteit van de EU verkregen.
Subject 3: European Citizenship art. 21 TFEU
Subject 4: Roadmap migrant non economically active persons
the roadmap of art. 21 (1) TFEU is covered in this section. It is important to bear in mind that his roadmap also applies to non-economically active persons as well. This means that the persons concerned are not always self-employed or a worker (employees)
Step 1: Applicability of EU law
If EU law does not apply to a given situation because the situation falls outside the scope of EU law, then we can not test the situation under art. 21 TFEU. The conclusion can them simply be made that EU law is not applicable and that the national rules apply in the given situation. To answer the question of the applicability of EU law, we need to look at the personal scope and the material scope.
the personal scope determines which persons are covered by EU law. In the context of natural persons, they are covered by EU law if they have the nationality of an EU member state. In the context of a legal person, it falls within scope if the legal person has its corporate seat in an EU member state.
Tip:
De personal scope houdt in dat we te maken hebben met een natuurlijk persoon die de nationaliteit heeft van een EU -lidstaat of een bedrijf waarvan het hoofdkantoor zich in een EU-lidstaat bevindt.
The situation falls under the material scope if there is a cross-border element on the one hand and an economic activity on the other:
Cross-border element:
this requirement can also be called the interstate element. If it can be concluded that there is no purely domestic situation (because several member states are involved), then there is a cross-border element.
Let op: in dit onderdeel behandel je niet het gedeelte van economic activity onder de material scope. Dat komt omdat art. 21 TFEU ook geldt voor niet economisch actieve personen.
Step 2: applicability of the CRD (directive 2004/38)
the CRD is the specific law that accompanies art. 21 TFEU. therefore, you always check whether the CRD applies.
Art. 2 and 3 of the CRD specify the cases in which the CRD applies. According to art. 3 (1) CRD it applies to: ‘all union citizens who move to or reside in a member state, other than that of which they are a national, and to their familiy members as defined in point 2 of art. 2 who accompany or join them’. It is important that the Union citizen moves to or resides in another Member State.
art. 2 defines the mains terms:
art. 2 (1) CRD gives the definition on a union citizen: ‘any person having the nationality of a Member State’.
Art. 2 (2) CRD gives the definition of a family member. Listed below are the main family members:
- the spouse
- the partner in a contracted registered partnership
- the direct descendant
LET OP: de CRD is dus van toepassing op de union citizens, maar ook op de familieleden, ongeacht of die familieleden union citizens zijn!
Step 3: Which right is claimed?
There are two rights that can be invoked when there is a possible a restriction under art. 21 TFEU.
there are the following two rights:
1 The right of residence
2 the right to equal treatment.
Nadere info:
twee rechten kunnen worden ingeroepen. Dat is het recht om ergens te mogen verblijven als EU burger en het recht op gelijke behandeling. Wanneer de persoon in kwestie zich beroept op zijn recht om in het land te mogen verblijven dan roept hij het right of residence in. Maar wanneer de vraag gaat over de weigering van een persoon voor sociale zekerheid omdat hij geen baan heeft, dan roept hij the right to equal treatment in.
Conditions on the right to reside
the right of residence is divided into three parts:
- when you reside less than three monts in the member state: according to art. 6 (1) of the CRD the person in question has the right to reside in the other member state. There are no requirements other than a health insurance and a passport.
- when you reside between 3 months and 5 years in the member state: two groups can be distinguished:
- workers and self-employed:
workers and self-employed persons have the right to reside in the other member state according to art. 7 (1) (a) CRD.
Tip:
de status van een worker of een self-employed person kun je ook weer terugkrijgen. Dit zien we in art. 7 (3) CRD. Deze eerste groep laat ook zien dat de CRD ook van toepassing kan zijn op economisch actieve personen. Wanneer bijv. de artikelen over the freedom to provide services, establishment of workers niet van toepassing zijn, zou art. 21 TFEU soelaas kunnen bieden.
Article 7(3) CRD
3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
(a) he/she is temporarily unable to work as the result of an illness or accident;
(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.
When a person is not involved in economic activity:
according to art. 7 (1) (b) CRD the person has to ‘have sufficient resources for themselves and their familiy members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’.
When you reside longer than 5 years in the member state: the person in question has a permanent right of residence.
equal treatment
Equal treatment is elaborated on in art. 24 (1) CRD. When invoking equal treatment, two importants points can be made:
- the rules on the right of residence must be met. So check the articles 6, 7 and 16 CRD! If there is no right of residence the right of equal treatment can not be invoked.
- If there is a right of residence the person concerned can invoke the right to equal treatment.
Nadere uitleg van Lawbooks:
Een standaardcasusvraag in the right of equal treatment is het aanvragen van sociale zekerheden. Wanneer heeft een persoon daar recht op? Wanneer er een recht is om te verblijven in een land, vanaf die periode heeft de persoon die verblijft in het land evenveel rechten als de inwoners van de lidstaten en mag dus in dezelfde gevallen sociale zekerheden aanvragen.
Stap 4: restrictions
The CRD, and thus art. 21 TFEU, may be subject to certain limitations. the restrictions allowed depend on which right is being invoked.
step 4a: restrictions on the right of residence
art. 27 (1): public policy, public security and public health can form the reason in which the CRD and art. 21 TFEU can be restricted. The following rules are important:
- art. 27 (2): public policy or public security may constitute an exception. But it must be proportionate and based exclusively on the personal conduct of the individual concerned. The justification must therefore be directly related to the person whose right is being infringed. justification on behalf of family members is therefore not permitted.
- as far as public health is concerned art. 29 (1) regulates in which situations this can form an exception.
- art. 28 (1) CRD: as far as public policy, or public security is concerned, the host member state shall take into account considerations such as the length of residence of its territory, the age, stage of health, family and economic situation, social and cultural integration of the person concerned.
- art. 28 (2) CRD: as far as expulsion in case of permanent residence ONLY on serious grounds of public security or public policy.
- art. 23 (3) CRD: in case of residence for 10 years or the residence of a minor only imperative (dwingende) grounds of public security justify an expulsion measure.
step 5b: restriction on the right of equal treatment
restrictions on the right of equal treatment
- art. 24(2): social assistance may be denied to persons covered by art. 6 CRD (during the first three monts of residence)
- art. 24 (2): for people residing less than 5 years: the state is not obliged to pay study grants to persons other than workers or self-employed persons, persons who retain such states and members of their families. Or you have been a worker or self-employed: art. 7 (retainment of the rights to maintain a worker).
Subject 4: Roadmap migrant non economically active persons
subject 5 overview of all the roadmaps
this issue summarizes alle relevant roadmaps from this week. So there are a number of variants and not for every case you step back to the freedom of workers. Note this diagram was created only to indicate which roadmaps you start at for a case. It does not say that, for example, the relevant article is immediately violated. So always run through all steps in the summary before drawing such a conclusion:
in case of an economically active person that is Self-employed: the freedom of establishment art. 49 TFEU or the freedom to provide services (art. 56 TFEU)
In case of an economically person that is not self-employed art. 45 TFEU on the freedom of workers and Regulation 492/2011
In case of a non-economically active person: art. 21 TFEU and Directive 2004/38
subject 5 overview of all the roadmaps
Bosman case the court ruled that art. 45 TFEU can be directly invoked before a national court.
Article 45 TFEU thus has direct effect: ‘as the court has repeatedly held, freedom of movement for workers is one of the fundamental principles of the Community and the Treaty provisions guaranteeing that freedom have had direct effect since the end of the transitional period’.
Article 45 TFEU has also horizontal effect. This means that Article 45 TFEU can be invoked against another private party before a national court instead of the provisions always being invoked against a member state, if it has vertical rather than horizontal effect. This was stipulated in the Angonese case par. 36: ‘Consequently, the prohibition of discrimination on grounds of nationality laid down in art. 48 of the treaty must be regarded as applying to private persons as well’.
Bosman case the court ruled that art. 45 TFEU can be directly invoked before a national court.
Article 45 TFEU thus has direct effect: ‘as the court has repeatedly held, freedom of movement for workers is one of the fundamental principles of the Community and the Treaty provisions guaranteeing that freedom have had direct effect since the end of the transitional period’.
hc aant
I. Free movement of workers
Example: Utrecht Eats
Suppose: you start a meals delivering service in Utrecht and you need many deliverers, but as cheap as possible.
You recruit 20 Dutch students, and 20 foreign students of University college Utrecht. You pay the Dutch students 10 euro per hour and the foreign ones 8 euro
Free movement of workers
Article 45 TFEU (ex art. 48 EC)
1. Freedom of movement for workers shall be secured within the Union.
2. 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.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
4. The provisions of this Article shall not apply to employment in the public service.
if there is direct discrimination > no justification other then mention in the treaty. if you look art. art. 45 TFEU is says in second 3 grounds public policy, security and public health. these grounds mention hear for free movement. there are strict reasons and only those who is necessary. Corona was public health. terrorist attack can public security. also discrimination can be limitation but only on these grounds. so you can not argue that foreign workers can be treated less acttrifectly since ..
Free movement of workers
Art. 45 TFEU entails the prohibition of:
Direct discrimination based on nationality
Indirect discrimination
Obstacles to free movement
objectives
* realisation of the internal market (not only for this, but also the secondly)
* non-discriminatory treatment on the labour market (no competition in the area of labour law)
General framework for solving a case
- First analyse the facts:
Select the most specific provisions for your case. Check whether they are applicable
in case of free movement: is there a cross border element?
does the person fall under the personal scope of the provision?
does the disputed issue fall under the material scope of the provision?
what are the conditions, exemptions, exceptions?
1 is this person a worker, then you need to apply art. 45 TFEU or not a worker than art. 21 TFEU
2 when we know if it is a worker> is there a cross border element?
3 does the person fall under the personal scope of the provision?
does the person satisfied the conditions for being a worker
4 does the disputed issue fall under the material scope of the provision?
5 what are the conditions, exemptions, exceptions?
like the public service in art. 45 par. 4 TFEU.
Free movement of workers
Requirement of cross border element: Art. 45 does not apply if all facts are limited to one Member State
Who is a worker?
Court of Justice (Lawrie-Blum judgment):
The term ‘worker’ has a community meaning applies regardless of the member state involved and has a broad meaning because it is meant to provide the free movement of workers.
Three criteria for worker: it is a person
1 - performing work
2 - for wage,
3 - under supervision of another person
criteria for work: it has to be
- genuine and real work
- of economic value,
- that is not merely marginal
and ancillary
this exclude self-employed who do not have supervision and volunteers persons who do not received wage. Most judgement national court has to decide to apply the definition.
Lawrie Blum
18. In the present case, it is clear that during the entire period of preparatory service the trainee teacher is under the direction and supervision of the school to which he is assigned. It is the school that determines the services to be performed by him and his working hours and it is the school’s instructions that he must carry out and its rules that he must observe. During a substantial part of the preparatory service he is required to give lessons to the school’s pupils and thus provides a service of some economic value to the school. The amounts which he receives may be regarded as remuneration for the services provided and for the duties involved in completing the period of preparatory service. Consequently, the three criteria for the existence of an employment relationship are fulfilled in this case.
Example: Utrecht Eats
Can your workers invoke art. 45 in order to claim equal treatment?
- in case of free movement: is there a cross border element?
there is, because the persons students doing also work but they are from foreign country’s. they are workers.
- in case of free movement: is there a cross border element?
- does the person fall under the personal scope of the provision?
Is it relevant that it is platform work?
Is it relevant that the workers are students?
next to their study, not relevant. because it is not excluded.
Is it relevant that they work only 20 hrs a week?
Not relevant either. small jobs can make that a person is a worker.
- does the person fall under the personal scope of the provision?
The effects of Article 45 TFEU
Art. 45 has direct effect: individuals can directly invoke a European provision before a national court.
Art. 45 has also horizontal effect: it can be invoked in horizontal relations: i.e. against an employer.
in horizontal situations, so against employer!!
Direct discrimination
distinction by means of a forbidden criterion, i.e. nationality (‘foreigners need a work permit’)
limitations can be justified only by:
- public policy,
- public security or
- public health (art. 45(3) TFEU.
Direct discrimination
Exemption in Art. 45(4): for employment in the public service.
Court: this exception is to be interpreted strictly. It covers posts involving direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or public authorities (Lawrie Blum)
persons like military, judges and maybe some high officials working for the government. but person school, education hospital are under art. 45 TFEU.
Lawrie Blum
Lawrie (British) was refused admission, on the ground of her nationality, to a period of preparatory service leading to the second state examination in Germany which qualifies successful candidates for appointment as teachers in a gymnasium.
Direct discrimination: forbidden, the fact that it was a public school and workers civil servants is irrelevant
Utrecht Eats
Is it relevant that you have a start-up and you do not have much money?
Is it relevant that you claim that foreign students do not need so much money since they spend most of the time on campus
Indirect discrimination
Distinction on a ground other than nationality, which has as the only or main effect that nationals of other Member States are treated differently on basis of nationality
Not allowed unless exceptions
on basis of the Treaty:
Or: there is an objective justification: the disputed condition
i) pursues a legitimate aim which is justified by overriding reasons of public interest,
if the persons is to reduce costs or earned money or avoid administration problems that is not efficient.
ii) is appropriate to achieve the legitimate objective pursued (appropriateness > is it stricto sensu?) and
iii) does not go beyond what is necessary to achieve the desired objective (proportionality).
so 1 legitimate 2 appropriate and 3 proportional.
Angonese judgment
- Italian national who studied in Austria – perfectly bilingual
- Cassa di Risparmio: requirement of bilingualism certificate issued in Bolzano. Practical problems to obtain this (cons 10)
Angonese judgment
Court considerations:
40. Since the majority of residents of the province of Bolzano are Italian nationals, the obligation to obtain the requisite Certificate puts nationals of other Member States at a disadvantage by comparison with residents of the province. (not direct discrimination, because it is not only Italians are admitted or not) but this affects foreigners more than nationals > so indirect.
- so, even though requiring an applicant for a post to have a certain level of linguistic knowledge may be legitimate : 1 legitimate aim test
is it legitimate to require this t.. Legitimate aim is that person is able to communicate fluently with clients from Austria and Italian. That is certainly a legitimate aim.
and possession of a diploma such as the Certificate may constitute a criterion for assessing that knowledge, adequacy test
is this .. requirement to reach this aim? yes, because certificate proves that you are bilingual.
the fact that it is impossible to submit proof of the required linguistic knowledge by any other means, in particular by equivalent qualifications obtained in other Member States, must be considered disproportionate in relation to the aim in view. Proportionality test
issued by Bolzano the court said this is not proportional, why only in Bolzano other most also be proved.
one of the 3 was not satisfied so it was forbidden.
Utrecht Eats example
You provide a luxury Christmas present to your workers who are in the Netherlands between 20 December and 3 January.
Most of your foreign workers appear to have gone to their parents in the country of origin.
> so they received nothing. is a rule that affects foreigners more than other. it is not forbidden as such, there is need to be a objectively justification. is it allowed or not? you may have the argument they have to be in Netherlands or.. it is not proportional to exclude the foreigners. Foreigners are discriminated through this.
Obstacles to free movement
also happen that a person not treated differently on ground nationality but feels obstacles of free movement.
Bosman: transfer sums can hinder free movement
- The transfer sum requirements apply also to ‘own nationals’
- but are obstacles to free movement : they preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement (Bosman cons. 96)
These are forbidden, unless they are justified:
this is the case if those rules
- pursue a legitimate aim;
- are adequate
- and proportional (Bosman cons. 104-114)
cross-border element is also important > in this case cross-border element. Not a form of discrimination > does not effect foreigners more than nationals. but is not the issue. rule that affects also people of community.
|Obstacles to free movement
Bosman:
Is Bosman a worker? criteria of case Lawry Blum
Court: application of Lawry Blum criteria plus sporting can be an economic activity (71)
also a supervision, you need to come to training etc.
Then: - is there a cross border element ?(88)
- is there an obstacle ?(92)
Arguments presented as justification
106 maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players
108 the prospect of receiving transfer, development or training fees is indeed likely to encourage football clubs to seek new talent and train young players.
113. the rules in question are necessary to compensate clubs for the expenses which they have had to incur in paying fees on recruiting their players
Regulation 492/2011
Regulation 492/2011 elaborates Art. 45 TFEU
Regulation must be interpreted in line with Art. 45 and must not restrict art. 45.
In case of reference to equal treatment of workers in EU law the Court often mentions both instruments jointly
particularly relevant Art. 7: prohibition of discrimination with respect of social advantages. (e.g. differences in employment conditions, but also in public advantages, such as income support, housing support, study grants)
if a person is a worker > in terms of art. 45 TFEU he or she has access of the social advantages of the host state, but you must be a worker.
definition of worker is also in regulation. seeking work > if you are looking for work art. 45 TFEU is also applicable.
art. 7 is particular of persons who is in work.
Recent application of Regulation 492/2011 in Dutch case law
Policy rules of DUO (study grants administration): a worker is a person who works at least 78 hours a month
Relevant for EU students for access to study grants/loans
Central Appeals Court: this is not in line with Lawry Blum case law: threshold is too high
A condition of 54 hours a week is acceptable
ECLI:NL:CRVB:2023:700
hc aant
hc aant. deel 2
II. Free movement of persons
Utrecht Eats example
- Mira, one of your foreign students came to the Netherlands 3 years ago and has worked for your firm for 11 months when she graduates. Then you dismiss her, since you only want to employ students.
Mira wants to stay in the Netherlands, but does not have a job anymore. She claims social assistance.
Free movement of persons
- Art. 20 TFEU: para 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties.
- These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. (i.e. Directive 2004/38)
Article 18 TFEU: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
- Art. 21 TFEU: European citizenship, ensures free movement (cross border element required)
relation between regulation 492 and directive 2004 is different. regulation 492 art. 45 TFEU are the same footing. the rules has be the same for alle member states. In case of persons we have elaboration in directives, directives has been implemented by member states, so they can do it on their own way. they have much more room for conditions.
fact free movement of workers is a fundamental rights.
free movement of persons is something extra you can say. it is also important and mention in treaty.
so they free movement of persons is more restricted than the one of workers.
Relationship between articles 21 and 45
- Since art. 45 has fewer exceptions and justifications for unequal treatment:
- Art. 45: for workers
- Art. 18 and 21 for economically inactive person; the applicable rules on free movement and non-discrimination are found in directive 2004/38
art. 45 TFEU gives more rights.
Free movement of persons
Directive 2004/38 had to solve a dilemma:
Free movement of persons is a fundamental right
Free movement of economically inactive persons leads to fear of social tourism (fear that persons without an income move to a country only for the social benefits)
Directive 2004/38
Art. 6: the right to stay in another Member State for maximum of three months, without conditions
important you can travel easily.
Directive 2004/38
Article 7 Right of residence for more than three months have
(a) workers or self-employed persons in the host Member State; or
(b) persons having sufficient resources > (so no worker or self-employed need sufficient resources) for themselves and their family members
(c) Students
(d ) family members
- A Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person if:
(a) He is temporarily unable to work as the result of an illness or accident;
(b) He is involuntary unemployed after having been employed for more than one year and registered as a job-seeker with the relevant employment office;
(c) He is involuntary unemployed after completing a fixed-term employment contract of less than a year. In this case, the status of worker shall be retained for no less than six months
sufficient resources > that you not claim social assurances. also same for the people who are looking for a job. you are not immediately losing your right of residence. you retain the ‘term work’.
but! you must be working in the host country. so not if you are new there.
Directive 2004/38
Article 24:
Subject to such specific provisions as are expressly provided for in the Treaty and secondary law,
all Union citizens residing on the basis of this Directive in the territory of the host Member State
shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty.
if you have the right of residence > what art. 7 says. then you have the right of equal treatment!!!
after 5 years of legal stay you have permanent right to reside. then same treatment as nationals. you need to find a way to provide your own income.
Directive 2004/38
Article 24(2): By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence
nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies until there is a right to permanent residence (i.e. after 5 years)
to persons other than workers, self-employed persons, persons who retain such status and members of their families.
Summary Directive 2004/38
Art. 6: the right to stay in another Member State for maximum of three months, without conditions
Art. 7: after 3 months and before five years have expired: there is a right to residence if the worker or self-employed person exercises an economic activity
or [in case of no economic activity] the person has sufficient resources not to become a burden on the social assistance system (and has a health insurance)
Article 16: after five years of legal residence a permanent right to stay exists, then full equal treatment (art. 24)
Alimanovic judgment
Ms Alimanovic lived (at least) 5 years in Germany, moved to Sweden and returned after 10 years to Germany
She and eldest daughter worked in Germany in jobs lasting less than one year
They were paid unemployment benefit for jobseekers for 6 months
Then benefit was terminated (whereas Germans in a position as theirs would still received it)
Is this consistent with EU law?
Alimanovic judgment
Court: The jobseekers allowance is a form of social assistance (44)
Art. 24(1) Directive 2004/38 ensures equal treatment, but only if the person has a right to reside in accordance with he directive
Art. 7(3) (c) restricts retaining the status as worker to 6 months for persons having worked less than 12 months
Therefore the refusal of benefit was allowed
Example of Utrecht Eats
Mira is
A foreign national -> cross border element
She was a worker during 11 months: therefore she maintains the status of worker for 6 months and she can require equal treatment during these 6 months, also for social assistance or study grants
hc aant. deel 2
Lawrie Blum (Case C-66/85)
Relevantie: In deze uitspraak wordt de definitie van een ‘worker’ uiteengezet. Belangrijk is dat je dit arrest gebruikt voor het uitwerken van artikel 45 TFEU.
Relevante feiten: Lawrie Blum is a British national. After passing the secondary school teacher examination at Freiburg University, she was denied entry to do an internship. The internship is part of the second state examination to become a secondary school teacher. She was not admitted because she did not hold German nationality.
Beoordeling: First, paragraph 16 reveals that worker meaning is community meaning. This means that it has a unified meaning within the doctrine of fundamental freedoms. Paragraph 17 then discusses what the definition of a worker is. ‘A person performs services for and under the direction of another person in return for which he receives renumeration.’ According to paragraph 20, anything done in return for renumeration is relevant to the definition. This paragraph discussed that work in the sphere of education can also fall under the definition of a worker. The fact that the person works only a few hours a week and is paid below the starting salary of a teacher does not prevent him from being labelled a worker (paragraph 21).
Paragraphs 25 and 27 highlight what Article 45(4) and the public service TFEU means. The function is regulated by public law and is about safeguarding the general interests of the state.
Lawrie Blum (Case C-66/85)
Relevantie: In deze uitspraak wordt de definitie van een ‘worker’ uiteengezet. Belangrijk is dat je dit arrest gebruikt voor het uitwerken van artikel 45 TFEU.
Relevante feiten: Lawrie Blum is a British national. After passing the secondary school teacher examination at Freiburg University, she was denied entry to do an internship. The internship is part of the second state examination to become a secondary school teacher. She was not admitted because she did not hold German nationality.
Beoordeling: First, paragraph 16 reveals that worker meaning is community meaning. This means that it has a unified meaning within the doctrine of fundamental freedoms. Paragraph 17 then discusses what the definition of a worker is. ‘A person performs services for and under the direction of another person in return for which he receives renumeration.’ According to paragraph 20, anything done in return for renumeration is relevant to the definition. This paragraph discussed that work in the sphere of education can also fall under the definition of a worker. The fact that the person works only a few hours a week and is paid below the starting salary of a teacher does not prevent him from being labelled a worker (paragraph 21).
Paragraphs 25 and 27 highlight what Article 45(4) and the public service TFEU means. The function is regulated by public law and is about safeguarding the general interests of the state.
Angonese (Case C-218/98)
Relevatie: In dit arrest is bepaald dat artikel 45 TFEU horizontale werking heeft.
Relevante feiten: Angonese is an Italian. His mother tongue is German. For a vacancy to do competition. A requirement was a bilingual certificate of Italian and German. Angonese did not possess that certificate. He was not allowed to survive the competition for that reason.
Beoordeling:
Paragraph 26 reveals that Article 45 TFEU also applies to private individuals among themselves. This indicates the horizontal effect that Article 45 TFEU has.
Angonese (Case C-218/98)
Relevatie: In dit arrest is bepaald dat artikel 45 TFEU horizontale werking heeft.
Relevante feiten: Angonese is an Italian. His mother tongue is German. For a vacancy to do competition. A requirement was a bilingual certificate of Italian and German. Angonese did not possess that certificate. He was not allowed to survive the competition for that reason.
Beoordeling:
Paragraph 26 reveals that Article 45 TFEU also applies to private individuals among themselves. This indicates the horizontal effect that Article 45 TFEU has.
Bosman (Case C-415/93)
Relevantie: In dit arrest komt naar voren dat artikel 45 TFEU directe werking heeft. Daarnaast komt aan bod dat een obstakel aan de vrijheid van werkers ook een schending van artikel 45 TFEU kan opleveren.
Relevante feiten: Bosman is a footballer by profession and holds Belgian nationality. Bosman was taken off the transfer list after he would not agree to a salary cut. eventually, after just about no club had no interest, he went on to sign with Dunkirk club. After signing several contracts at different clubs, he was eventually placed with Olympic de Charleroi. The suspicion is that he was boycotted by European clubs despite being a so-called free footballer. The question in this case is whether the sports associations or federations in question were allowed to include provisions restricting the entry of foreign players to the leagues they organized.
Beoordeling: Paragraph 93 first highlights that the Article 45 TFEU provision has direct effect. Besides direct effect, this judgment has another important rule of law. Paragraphs 96 and 114 discuss that an obstacle to the free movement of workers also constitutes a violation of Article 45 TFEU. It is not just about direct or indirect discrimination.
Bosman (Case C-415/93)
Relevantie: In dit arrest komt naar voren dat artikel 45 TFEU directe werking heeft. Daarnaast komt aan bod dat een obstakel aan de vrijheid van werkers ook een schending van artikel 45 TFEU kan opleveren.
Relevante feiten: Bosman is a footballer by profession and holds Belgian nationality. Bosman was taken off the transfer list after he would not agree to a salary cut. eventually, after just about no club had no interest, he went on to sign with Dunkirk club. After signing several contracts at different clubs, he was eventually placed with Olympic de Charleroi. The suspicion is that he was boycotted by European clubs despite being a so-called free footballer. The question in this case is whether the sports associations or federations in question were allowed to include provisions restricting the entry of foreign players to the leagues they organized.
Beoordeling: Paragraph 93 first highlights that the Article 45 TFEU provision has direct effect. Besides direct effect, this judgment has another important rule of law. Paragraphs 96 and 114 discuss that an obstacle to the free movement of workers also constitutes a violation of Article 45 TFEU. It is not just about direct or indirect discrimination.
Alimanovic (Case C-67/14)
Relevantie: Dit arrest gaat verder in op het tweede stappenplan van de leerstof. Er wordt ingegaan op artikel 7 (1) (b) CRD. Daarnaast wordt bevestigd dat het beroep op artikel 24(1) CRD afhangt van de right of residence.
Relevante feiten: This case revolves around Alimanovic and her children. All the children have Swedish citizenship while Alimanovic was born in Bosnia and her children in Germany. The family left for Sweden but later returned to Germany. However, Alimanovic could not obtain benefits in Germany. She and her daughter worked in Germany for less than a year after becoming unemployed. They applied for social assistance in Germany. The question is whether they are entitled to it.
Beoordeling: We see the first important consideration in paragraph 50. A person is entitled to social assistance if they do not participate in an economic activity if they do not constitute an unreasonable burden on the member state’s system. In paragraph 53, we also see the situation of Ms alimanovic and her daughter. They have been employed for less than a year and therefore receive again the status of a worker under article 7(3) (c) of the directive. Ms alimanovic and her daughter therefore receive the status of a worker for not less than black months. during that period, they have the right of residence and are therefore entitled to social assistance under article 24(1) CRD. This also emerges in paragraph 54. During the time they have the the right to reside (6 months), they also have the right to social assistance according to the principle explained in Article 24(1) CRD.
Paragraph 59 normally reveals that a person not involved in economic activity should not be an unreasonable burden on the system. To determine that, you must consider the individual situation of the person before deciding that the person in question is an unreasonable burden on the system. It then comes out in paragraph 62 that a single claim by a single applicant can hardly constitute an unreasonable burden on the system, but the accumulation of all individual claims can.
Alimanovic (Case C-67/14)
Relevantie: Dit arrest gaat verder in op het tweede stappenplan van de leerstof. Er wordt ingegaan op artikel 7 (1) (b) CRD. Daarnaast wordt bevestigd dat het beroep op artikel 24(1) CRD afhangt van de right of residence.
Relevante feiten: This case revolves around Alimanovic and her children. All the children have Swedish citizenship while Alimanovic was born in Bosnia and her children in Germany. The family left for Sweden but later returned to Germany. However, Alimanovic could not obtain benefits in Germany. She and her daughter worked in Germany for less than a year after becoming unemployed. They applied for social assistance in Germany. The question is whether they are entitled to it.
Beoordeling: We see the first important consideration in paragraph 50. A person is entitled to social assistance if they do not participate in an economic activity if they do not constitute an unreasonable burden on the member state’s system. In paragraph 53, we also see the situation of Ms alimanovic and her daughter. They have been employed for less than a year and therefore receive again the status of a worker under article 7(3) (c) of the directive. Ms alimanovic and her daughter therefore receive the status of a worker for not less than black months. during that period, they have the right of residence and are therefore entitled to social assistance under article 24(1) CRD. This also emerges in paragraph 54. During the time they have the the right to reside (6 months), they also have the right to social assistance according to the principle explained in Article 24(1) CRD.
Paragraph 59 normally reveals that a person not involved in economic activity should not be an unreasonable burden on the system. To determine that, you must consider the individual situation of the person before deciding that the person in question is an unreasonable burden on the system. It then comes out in paragraph 62 that a single claim by a single applicant can hardly constitute an unreasonable burden on the system, but the accumulation of all individual claims can.
Workers
Art. 45 TFEU
Personal scope
- EU Citizen + worker (Lawrie Blum)
Services/establishment
Art. 49 + 56 TFEU
- EU Citizen (self-employed or EU established companies) + companies
EU Citizenship
Art. 20 + 21 TFEU
Personal scope
EU Citizen
Key to distinguished between workers and services/establishment is the supervision.
As a worker you have more rights than the EU Citizenship. Worker is like a lex specialis
Workers
Art. 45 TFEU
Personal scope
- EU Citizen + worker (Lawrie Blum)
Services/establishment
Art. 49 + 56 TFEU
- EU Citizen (self-employed or EU established companies) + companies
EU Citizenship
Art. 20 + 21 TFEU
Personal scope
EU Citizen
Key to distinguished between workers and services/establishment is the supervision.
Key to distinguished between workers and services/establishment is the supervision.
All of these under is the rule of reason
Bosman (Workers)
Cassis (Goods)
Gebhard (Establishment)
Eerst rule of reason bij indirect en obstacle than art. 45 (3) want die artikel 45 (3) is a lot higher.
All of these under is the rule of reason
Bosman (Workers)
Cassis (Goods)
Gebhard (Establishment)
Eerst rule of reason bij indirect en obstacle than art. 45 (3) want die artikel 45 (3) is a lot higher.
