Free movement of Workers Flashcards
Where is the prohibition against restriction of free movement of workers enshrined?
Art. 45(1) TFEU
Where is the prohibition against discrimination based on nationality enshrined?
- Art. 45
-par 2
+ Art 7(1)- Da Regulation
Where can be the exception of free movement of workers found?
-Public service employment exception
-Art 45(4)
Where can the legal basis for harmonisation of national laws in regards to free movement of workers be found?
-Art. 46 TFEU
What are the steps to access the applicability of Art. 45
a) Is this case about “workers”?
b) Job-seekers also considered to a certain extent, but directive 2004/38/EC codifies this
b) Is there applicable harmonisation at EU level (e.g: directives regulation)
-If yes than apply the harmonisation
c) Is there a cross border-element in the case?
d) Is the personal scope of Art. 45 achieved? Can the claimant use this art against the defendant?
Describe how justification of restriction against free movement of workers could be justified
a) Is there a ground of justification in Art. 45 TFEU or a “mandatory/imperative requirement”?
b) Is the measure restricting the free movement of workers, proportionate (think about balancing factors?)
How does one determine the material scope of Art. 45?
a) Does the measure RESTRICT the fm of workers?
How can one determine whether a person is a worker?
def. sep. from MS nat. def.
-Lawrie-Blum C16
-criteria for worker defined in
-Lawrie-Blum C17
-
1.for certain period of time
2.subordin 2 another percid
3. renumenration)
NB: Yes, part-time work, and low wage work
- NOT tings that are just “marginal and anciallary” (Levin)
Does Art 45 TFEU apply to job seekers?
- Yes, Art 45(3) does.
-purposive interpre.
-looking at the purpose of the provision, allow people to seek work outside their MS
How can one determine the personal scope of Art. 45 TFEU? (Think treaty provisions)
check mindmap
Where can one find the non discrimination rights against job seekers?
-Directive 2004/38/EC
Explain the general structure of the Free Movement of Workers
- Applic. of Art. 45 TFEU
-workers?
-app. harmo?
-no, cross boarder element?
-personal scope - is there a rest. on FMW
3.Justifications
-Art. 5(3) TFEU or man. requirement?
-proportionality
TRUE or FALSE: job seekers are not considered workers
- FALSE
-Directive 2004/38/EC (14(3)(b)
(Citizen’s Free Movements Rights)
-Art. 7(3) Regulation 492/2011
TRUE or FALSE: freedom of workers applies to workers moving within an EU MS
-NO–> need CB element
-Saunders case
TRUE or FALSE: Art. 45 TFEU has horizontal direct effect
-YES- to some extent
-can apply fully in cases con. nat. discrim. (Angonese)
