free movement of workers

Question 1

what comes under art 45 TFEU S2?

Answer 1

such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of MS as regards employment, remuneration and other conditions of work and employment

Question 2

what comes under art 45 TFEU? - s1

Answer 2

1. Freedom of movement of workers shall be secured within the Union

Question 3

what comes under art 45 s3 TFEU?

Answer 3

it shall entail the right, subject to limitations on justified 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 MS for this purpose;
c. to stay in a MS 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 MS after having been employed in that state, subject to conditions which shall be embodied in regulations to be drawn up by the Commission

Question 4

what comes under art45 s4?

Answer 4

the provisions of the article shall not apply to employment in the public service

Question 5

what is the exercise of rights under art 45 subject to?

Answer 5

regulation (EU) No 492/2011 on freedom of movement for workers within the Union

sets out rules for employment, equal treatment and workers’ families

Question 6

what are families entitled to?

Answer 6

Directive 2004/38/EC

• gives the right of citizens of the union and their family members to move and reside freely within the territory of the MS’

also known as Citizens’ Right Directive - CRD

Question 7

what are the categories of people that can use the free movement framework?

Answer 7

1. workers that fall under art 45 and under the working provisions of Regulation 492 and CRD
2. jobseekers
3. students
4. persons of independent means
5. family members - art 2 CRD - get derivative rights

Question 8

what is the EU definition of a worker from the case of Lawrie Blum?

Answer 8

‘the essential feature of an employment relationship … is that for a certain period of time a person performs a service for and under the direction of another person in return for which he receives remuneration’

Question 9

what are the key features of the EU definition of a worker?

Answer 9

• settlement
• relationship of subordination
• service provision
• remuneration - economic activity

Question 10

what are some key points from case law in relation to remuneration?

Answer 10

• remuneration does not need to be higher than the minimum subsistence level in a MS - Levin
• it is not relevant if someone relies on social assistance in host state to supplement pay - Kempf
• a person performing under a traineeship scheme, financially supported by the public authority, also has the status of worker - Balkaya
• remuneration can be ‘in kind’ and may be an indirect form of consideration for services, doesn’t have to be money = Steymann

Question 11

what does the case of Levin hold about economic activity?

Answer 11

only effective and genuine activities
exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary

Question 12

what does the case of Bettray hold about economic activity?

Answer 12

activity that is predominantly social and therapeutic for the subordinate will not constitute genuine and economic activity

Question 13

how is it decided whether something is a genuine/effective economic activity or not?

Answer 13

this is down to the national court to decide

Question 14

what does art 7(3) EU Directive 2004/38 state?

Answer 14

A Union citizen can retain the status of worker in certain circumstances, even if they are unable or no longer working
- temporary incapacity
- involuntary unemployment
- vocational training

The CJEU also held that persons who are unable to work due to the effects of pregnancy would also retain worker status under art 45 TFEU – Jessy Saint-Prix v SSWP

Question 15

what did the case of Antonissen achieve for jobseekers?

Answer 15

ECJ widened the scope of art 45 and recognised that jobseekers have a right to reside in order to find work

Right of residence to pursue paid employment – Martinez Sala

Question 16

what did the case of Collins establish in relation to job seekers?

Answer 16

• MS is entitled to establish a reasonable period of time for which job-seekers can reside in order to search for a job
• if after the expiry period the person … provides evidence that he continues to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the host MS

Question 17

are jobseekers granted worker status?

Answer 17

no - they do fall under art 45 but have much more limited rights

Question 18

what is there a requirement for when protecting workers?

Answer 18

EU law only protects workers who have exercised free movement in some way, it requires a cross border situation

it will not cover wholly internal situations - where a person works and lives in their home state

Question 19

what are the types of worker movement?

Answer 19

1. migrant workers - person migrates from A to B to live and work there
2. frontier workers - person works in A and resides in another MS (B) wo which he returns as a rule daily or at least once a week
3. returning workers - a person migrates for A to B to work. they then later to decide to stop working in B and return to A. they may maintain some of their rights as workers

Question 20

when can a worker rely on art 45 TFEU against their own state?

Answer 20

where the worker is employed and the resident of another MS - not wholly internal situation

Question 21

is there an element of reverse discrimination?

Answer 21

national worker A cannot claim rights in their own MS which are available for worker B who is a national of another MS

Question 22

what are the two types of rights workers get?

Answer 22

Access rights - right to take up employment in the host MS - art 45 TFEU, art 1 EU Regulation 492/11

Substantive rights - conditions of employment, social advantges, art 7 EU regulation 492/11 and EU directive 2004/38

Question 23

what are the three measures prohibited by art 45?

Answer 23

direct discrimination in access to employment
- the measure expressly discriminates on the basis of the nationality of the worker

indirect discrimination in access to employment
- measure applicable irrespective of nationality but has a principle effect to keep nationals of other MS away from employment

obstacles to accessing the market
- the measure affects access to the employment market by impeding, deterring or hindering free movement of workers