Free Movement of Workers

Question 1

Art.45(1) TFEU

Answer 1

Art.45(1) TFEU provides that FMW shall be secured in the EU

Question 2

Art.45(2) TFEU

Answer 2

Art.45(2) provides that such freedom (FMW) shall entail the abolition of ANY discrimination based on nationality as regards EMPLOYMENT REMUNERATION and other conditions of employment

Question 3

Art.45(3) TFEU

Answer 3

Workers shall have the rights to accept employment offers in other MS, move freely and reside within that MS

Question 4

Van Gend en Loos

Answer 4

Rights under Art.45 have direct effect

Question 5

Art,18 TFEU

Answer 5

This prohibits discrimination on grounds of nationality. Art.45 TFEU gives effect to this in relation to workers specifically

Question 6

Art.46 TFEU

Answer 6

European Parliament shall adopt secondary legislation in order to ensure the rights under Art.45 are given effect to.

See Directive 2004/38 and Regulation 492/2011 for examples of this.

Question 7

Art.49 TFEU

Answer 7

This relates to freedom to provide self-employment across the EU.

Question 8

Jany

Answer 8

For a citizen’s rights to free movement to fall under the scope of workers under Art.45 TFEU rather than Art.49 (self-employment), there must be a relationship of subordination between the employee and employer

Question 9

Hoekstra

Answer 9

CJEU held that the concept of worker is NOT to be determined by each MS, but rather the CJEU defines the meaning of worker under Art.45 TFEU. CJEU held that a worker is any person who pursues employment activities which are genuine and effective, to the exclusion of such small activites that are purely marginal and ancillary.

So Hoekstra gives a broad definition to workers under Art.45 TFEU.

Question 10

Levin

Answer 10

Part-time workers also constitute workers for the purposes of Art.45 TFEU - purposes of Art.45 would be jeopardised if part time workers were excluded

Question 11

Kempf

Answer 11

Workers include individuals who supplement their employment income through social welfare payments granted by the MS - but the individual must still be pursuing genuine and effective employment activities in addition to receiving welfare payments to be a worker.

So CJEU said that MS cannot restrict in-work supplementary welfare payments for just citizens from other MS - Art.45(2) TFEU provides that FMW is to entail the abolition of discrimination on the basis of nationality as regards employment remuneration and conditions.

Question 12

Birden

Answer 12

Workers also extends to individuals who are performing subsidised work - so if an individual is pursuing genuine and effective employment but working at a subsidised rate, they still constitute a worker under Art.45 TFEU.

Question 13

Antonissen

Answer 13

Jobseekers in a MS also constitute workers for the purposes of Art.45 TFEU. Under Art.45, citizens must be given reasonable time to appraise themselves and find employment within another MS - 6 months in this case was not deemed to be a sufficient time for Antonissen to find employment.

This shows the broad approach to workers taken by the CJEU - extends beyond those who are actually in employment to those seeking employment in another MS.

If AFTER the expiration period the individual can show that they have a genuine chance of being engaged in genuine and effective employment, then they cannot be forced to leave the MS

Question 14

Collins

Answer 14

CJEU confirmed that even though jobseekers constitute workers under Art.45 TFEU, there is a distinction between fully-fledged workers and jobseekers still for the purposes of FMW rights.

Fully-fledged workers who are not jobseekers are entitled to all of the substantive FMW rights conferred by Regulation 492/2011 - whereas jobseekers are only entitled to rights related to access to employment (non-discrimination) under Art.45

Question 15

Art.45(2) Scope

Answer 15

Art.45(2) provides that discrimination on the basis of nationality is to be abolished. This applies to both direct discrimination at law e.g. employer states that no non-MS nationals can apply.

But it also applies to indirect discrimination - things which are intrinsically liable to affect non-MS nationals more than domestic workers.

Question 16

Kalliope

Answer 16

CJEU held that the employer had violated Kalliope’s right to non-discrimination under Art.45(2) TFEU indirectly by not taking into account their hospital experience outside of the MS in assessing people for a promotion.

So where there is a rule which is intrinsically liable to affect migrant workers more than domestic workers, it is prohibited under Art.45(2) TFEU

Question 17

Groener

Answer 17

Indirect discrimination by employers MAY be justified if it is part of a legitimate public policy drive adopted by the MS (and NOT just a requirement for a particular sector or job), provided it meets the proportionality criteria.

So CJEU held here that the Irish govt.’s requirement for teachers to meet a sufficient standard of Irish language was justified because it was a) part of a wider public policy drive by the govt; and b) was proportionate.

Question 18

Bosman

Answer 18

CJEU held that where a measure or rule is not discriminatory at all but hinders access to the labour market, then the rule is prohibited under Art.45 TFEU - so expands the test beyond non-discrimination to also include hindrance to access to the labour market

Question 19

Trojani

Answer 19

Where the employment is purely artificial and would NOT normally form part of the labour market, then even though the individual may be receiving payment for his employment he is NOT a worker under Art.45 TFEU.

So if employment is not part of the normal labour market and instead just a means of rehabilitation, then the individual is not a worker and cannot exercise his rights to non-discrimination on the basis of nationality as regards employment etc. under Art.45 TFEU

Question 20

Saunders

Answer 20

Rights under Art.45 TFEU do NOT apply to purely internal situations - the individual must move out of their host MS and work in another MS to engage their Art.45 rights. So where the individual just stays in their domestic MS, they cannot invoke their rights to non-discrimination on the basis of nationality under Art.45(2)

Question 21

Art.45(4) TFEU

Answer 21

Art.45(4) contains the public service proviso - this provides that Art.45 shall NOT apply to employment in the public service

Question 22

Sotgiu

Answer 22

CJEU held that it is the CJEU’s job to determine what constitutes ‘employment in the public service’. Court made it clear that Art.45(4) cannot be used to justify discriminatory conditions to the public service, but ONLY to justify restrictions on admissions to the public service

Question 23

Commission v Belgium

Answer 23

CJEU held that the public service proviso is intended to justify reserving positions for MS nationals which require a specific bond of allegiance and mutuality of rights between the state and employee.

Two conditions for this relationship:

1) Participation in the exercise of powers conferred by public law
2) The post must entail duties designed to safeguard the interests of the state

Question 24

Commission v France

Answer 24

Nurse in public hospital does NOT qualify under public service proviso under Art.45(4).

Question 25

Lawrie-Blum

Answer 25

Trainee teacher does NOT qualify under public service proviso.

Question 26

Art.45(3) TFEU

Answer 26

Justification for derogation on grounds of public policy, public health or public security.

Question 27

Art.27(2) Directive 2004/38

Answer 27

Art.45(3) TFEU is also found in Directive 2004/38. Directive 2004/38 provides that such restrictions on FMW rights are subject to the principle of proportionality.

The conduct of the individual concerned MUST represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society in order for the MS to validly restrict FMW rules.

Question 28

Bouchereau

Answer 28

The individual must threaten a fundamental interest of society - it cannot be someone merely breaking the law

Question 29

Calfa

Answer 29

Even in respect of current criminal convictions, an MS may NOT deport an EU national as part of a general criminal deterrence programme - needs to meet the criteria in Directive 2004/38

Question 30

Adoui and Cornuaille

Answer 30

A migrant worker’s conduct CANNOT be considered ‘sufficiently serious’ to justify FMW restriction where the MS does NOT adopt genuine and effective measures to combat the same conduct by its own nationals - so cannot fall within Directive 2004/38 requirements if the MS does not seek to combat the conduct for domestic nationals

Question 31

Orfanopoulos

Answer 31

CJEU set out the relevant factors in assessing whether FMW restriction is proportionate in achieving its objective:

• Nature and seriousness of offences committed by individual
• Length of his residence in the MS
• Family circumstances
• Time period since commission of the offence

Question 32

Steymann

Answer 32

Worker also includes individuals who are remunerated for their basic expenses.

Steymann was a builder and got paid back the money he paid for materials etc. - still constitute a worker if they are remunerated for their basic expenses.