Free movement of Workers

Question 1

Where is the prohibition against restriction of free movement of workers enshrined?

Answer 1

Art. 45(1) TFEU

Question 2

Where is the prohibition against discrimination based on nationality enshrined?

Answer 2

• Art. 45
  -par 2

Question 3

Where is the clarification of free movement rights and Treaty derogations enshrined?

Answer 3

-Article 45
-par 3

Question 4

Where can be the exception of free movement of workers found?

Answer 4

-Public service employment exception
-Art 45(4)

Question 5

Where can the legal basis for harmonisation of national laws in regards to free movement of workers be found?

Answer 5

-Art. 46 TFEU

Question 6

Where can the legal basis for harmonisation in the area of social security be found?

Answer 6

-Art. 48 TFEU

Question 7

What are the steps to access the applicability of Art. 45

Answer 7

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?

Question 8

Describe how justification of restriction against free movement of workers could be justified

Answer 8

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?)

Question 8

How does one determine the material scope of Art. 45?

Answer 8

a) Does the measure RESTRICT the fm of workers?

Question 9

How can one determine whether a person is a worker?

Answer 9

-Look at case law
-Autonomy of EU law, def. sep. from MS nat. def.
-Lawrie-Blum C16
-criteria for worker defined in
-Lawrie-Blum C17
-engaged in the work:
-for certain period of time
-ANOTHER person directing u (hierarchy)
-Money is given for this work (renumenration)

-Applies for part-time work, renumeration between minimum wage, etc
 - but not. for things that are just "marginal and anciallary" (Levin)

Question 10

Does Art 45 TFEU apply to job seekers?

Answer 10

• Yes, Art 45(3) does.
  -purposive interpre.
  -looking at the purpose of the provision, allow people to seek work outside their MS

Question 11

How can one determine the personal scope of Art. 45 TFEU? (Think treaty provisions)

Answer 11

check mindmap

Question 12

Where can one find the non discrimination rights against job seekers?

Answer 12

-Directive 2004/38/EC