Free movement of persons (workers)

Question 1

When is there a worker?

Answer 1

Lawrie-Blum case
a worker is someone that for a
certain period of time performs services for and under the direction of another person in return for
which they receive remuneration.

Raulin-case:
t ‘in order to be regarded as a worker, a person must perform effective and genuine activities to the exclusion of activities on such a small scale as to be purely marginal and ancillary.

Question 2

Which three requirements need to be fulfilled to be a worker?

Answer 2

• The person needs to live in one State and work in another.
• The person has to be under the direction of another person.
• The person needs to receive remuneration= money paid for work

Question 3

What are exceptional situations when it comes to free movement of workers?

Answer 3

1. familiy members: art. 45 TFEU covers familiy members: Bauman-case.
2. Former worker: Lair-case & art. 7(3) CRD
3. Jobseekers: Antonissen-case & Lebon-case. Rules softned in the Collins-case: t ‘in order to be regarded as a worker, a person must perform
   effective and genuine activities to the exclusion of activities on such a small scale as to be purely
   marginal and ancillary

Question 4

What is the scope of art. 45 TFEU?

Answer 4

Directly discriminatory, indirectly discriminatory and non discriminatory measures according to Bosman-case.

Question 5

How can breach of art. 45 TFFEU be justified?

Answer 5

Direct discriminatory, indirect discriminatory and non-discriminatory: express justification in art. 45(3) TFEU + proportionality test

Indirect discriminatory and non-discriminatory: implied justification from Gebhard-case + proportionality test

Question 6

What are examples of implied justifications accepted in the past?

Answer 6

consumer protection, professional rules intended to protect the recipients of a service, protection of intellectual property, and conservation of the national historic and artistic heritage

Question 7

What does art. 45(4) TFEU mean?

Answer 7

article 45(4) TFEU allows a Member State to impose
restrictions on the access of EU migrant workers to employment in the public service of that Member
State. Member States may reserve ‘state jobs’ for their own nationals. Article 45 TFEU and the
prohibition to the free movement of workers is hence not applicable to employment in the public
service.

Question 8

What is public service as in art. 45(4) TFEU?

Answer 8

Commission vs Belgium case.

whether a job is considered to be in the public sector
depends on whether it involves ‘direct or indirect participation in the exercise of powers conferred by
public law and whether whose purpose is to safeguard the general interests of the State or of other
public authorities’ and which therefore require a ‘special relationship of allegiance9 to the State on the
part of persons occupying them and reciprocity of rights and duties which form the foundation of the
bond of nationality’