Free Movement of Workers Flashcards
Key legislation
Regulation 492/2011 (workers)
Directive 2004/38/FC (persons)
Hoekstra
- definition of a ‘worker’ is to be decided by the EU law, not domestic law (obviously necessary to ensure there is equality)
Worker = all those covered by the different national systems of social security
- definition of a ‘worker’ is to be decided by the EU law, not domestic law (obviously necessary to ensure there is equality)
Worker = all those covered by the different national systems of social security
Hoekstra
Levin
MSs cannot unilaterally restrict the definition of workers!
AG Slynn: “the right enjoyed by workers is ‘dependent on its being shown that the work in the Member State is a GENUINE and SUBSTANTIAL purpose although it need not be the chief purpose.”
HELD:
- right to FMW covers ‘effective and GENUINE activity’, except which are on “such a small scale as to be regarded as purely marginal and ancillary”
When defining worker, one cannot look at the motivation. It can’t be argued that someone’s not a worker just because they work part time and don’t meet the minimum amount to subsist.
MSs cannot unilaterally restrict the definition of workers!
AG Slynn: “the right enjoyed by workers is ‘dependent on its being shown that the work in the Member State is a GENUINE and SUBSTANTIAL purpose although it need not be the chief purpose.”
HELD:
- right to FMW covers ‘effective and GENUINE activity’, except which are on “such a small scale as to be regarded as purely marginal and ancillary”
When defining worker, one cannot look at the motivation. It can’t be argued that someone’s not a worker just because they work part time and don’t meet the minimum amount to subsist.
Levin
Kempf
Sufficient means of subsistence:
Music teacher, 12h/week
-> Dutch gvt: the minimum means of subsistence cannot be regarded as genuine and effective work where the person is dependent on public funds
HELD: Provided that the employment is genuine and effective, it doesn’t matter how the person meets the minimum standard of subsistence
Sufficient means of subsistence:
Music teacher, 12h/week
-> Dutch gvt: the minimum means of subsistence cannot be regarded as genuine and effective work where the person is dependent on public funds
HELD: Provided that the employment is genuine and effective, it doesn’t matter how the person meets the minimum standard of subsistence
Kempf
Lawrie-Blum
Definition of worker:
A person who
- performs services
- for and under the direction of another person
- receives remuneration for it
Definition of worker:
A person who
- performs services
- for and under the direction of another person
- receives remuneration for it
Lawrie-Blum
Steymann
Broad definition of remuneration:
Includes an “indirect quid pro quo”
Participation in a community based on religion or another form of philosophy (such as Bhagwan as with Steymann) falls within the field of EU law as long as it can be regarded as an economic activity
Broad definition of remuneration:
Includes an “indirect quid pro quo”
Participation in a community based on religion or another form of philosophy (such as Bhagwan as with Steymann) falls within the field of EU law as long as it can be regarded as an economic activity
Steymann
Brown v Secretary of State for Scotland (1988)
1) A national of another MS who enters into an employment relationship in the host State with a view to subsequently undertaking university studies there in the same field of activity, and who would not have been employed by his employer if he hadn’t already been accepted for admission to university, is regarded to be a worker
2) distinguishment between payment of fees and maintenance grants - only the former is covered by Treaties
1) A national of another MS who enters into an employment relationship in the host State with a view to subsequently undertaking university studies there in the same field of activity, and who would not have been employed by his employer if he hadn’t already been accepted for admission to university, is regarded to be a worker
2) distinguishment between payment of fees and maintenance grants - only the former is covered by Treaties
Brown v Secretary of State for Scotland
Raulin
- On call contract falls within the scope of a ‘worker’
- It is for national court to determine the marginality of work - limited number of hours might indicate that the work was marginal and ancillary.
- Course undertaken to obtain new skills (to further their career) must be relevant to previous employment in order to continue holding the status of a worker, unless the person becomes unemployed involuntarily
- On call contract falls within the scope of a ‘worker’
- It is for national court to determine the marginality of work - limited number of hours might indicate that the work was marginal and ancillary.
- Course undertaken to obtain new skills (to further their career) must be relevant to previous employment in order to continue holding the status of a worker, unless the person becomes unemployed involuntarily
Raulin
Antonissen
PURPOSEFUL APPROACH: looks at its intended effect!!
A strict interpretation of Art 45(3) TFEU would jeopardise the actual chances that a national of a MS who is seeking unemployment will find it in another MS
- MS can decide that a person should be deported after 6 months of job seeking, unless one can prove that they’re still actively seeking work with reasonable prospects
- Art 45(3) rights are non-exhaustive!
- Job seekers as “second class workers”
PURPOSEFUL APPROACH: looks at its intended effect!!
A strict interpretation of Art 45(3) TFEU would jeopardise the actual chances that a national of a MS who is seeking unemployment will find it in another MS
- MS can decide that a person should be deported after 6 months of job seeking, unless one can prove that they’re still actively seeking work with reasonable prospects
- Art 45(3) rights are non-exhaustive!
- Job seekers as “second class workers”
Antonissen
Lebon
Minimex payment
The right to equal treatment with respect to social and tax advantages only applies to workers, NOT jobseekers!
Minimex payment
The right to equal treatment with respect to social and tax advantages only applies to workers, NOT jobseekers!
Lebon
Summary of a definition of a worker
- EU defines it (Hoekstra)
- GENUINE economic activity (Levin)
- doesn’t have to be monetary payment (Steymann)
- doesn’t have to be full-time or guaranteed work (Raulin)
- may be related to training (Lawrie-Blum/Brown)
- applies also to jobseekers (Antonissen)
Commission v France (Bridge Workers)
Employment in the bridge and various other key parts of merchant vessels was limited to French nationals
-> DIRECT DISCRIMINATION
prohibited by Art 45 TFEU
Employment in the bridge and various other key parts of merchant vessels was limited to French nationals
-> DIRECT DISCRIMINATION
prohibited by Art 45 TFEU
Commission v France (Bridge Workers)
Example of direct discrimination
Commission v France (Bridge Workers):
Employment in the bridge and various other key parts of merchant vessels was limited to French nationals
-> DIRECT DISCRIMINATION
prohibited by Art 45 TFEU
Examples of indirect discrimination
Groener: permitted
Roman Angonese: not permitted
Commission v Belgium (1982)
Article 45(4) not intended to include menial or generic jobs that simply happened to be in the public service
Employment in public service requires:
- direct or indirect participation in the powers conferred by public law
- safeguard the general interests of the state
Article 45(4) not intended to include menial or generic jobs that simply happened to be in the public service
Employment in public service requires:
- direct or indirect participation in the powers conferred by public law
- safeguard the general interests of the state
Commission v Belgium (1982)
Sotgiu
Italian national, works for German postal service
-> refused “separation payment” for workers working away from home
Should the allowances apply to workers who travel from another MS for work?
HELD: if the scheme relating to such an allowance takes account of objective differences in the situations of workers according to whether their residence at the time when they take up their employment is within the territory of the state concerned or abroad
Italian national, works for German postal service
-> refused “separation payment” for workers working away from home
Should the allowances apply to workers who travel from another MS for work?
HELD: if the scheme relating to such an allowance takes account of objective differences in the situations of workers according to whether their residence at the time when they take up their employment is within the territory of the state concerned or abroad
Sotgiu
R v Saunders
Purely internal situations:
Situation has to have some connection to EU law, ie you have to move to take advantage of your rights
-> bizarre results: reverse discrimination
Purely internal situations:
Situation has to have some connection to EU law, ie you have to move to take advantage of your rights
-> bizarre results: reverse discrimination
R v Saunders
Groener
Dutch national, worked part time in an Art College in Dublin
-> sought appointment to a full-time post which was subject to passing an Irish exam
HELD: EU law does not prohibit the adoption of a policy for the protection and promotion of a language of a MS.
Dutch national, worked part time in an Art College in Dublin
-> sought appointment to a full-time post which was subject to passing an Irish exam
HELD: EU law does not prohibit the adoption of a policy for the protection and promotion of a language of a MS.
Groener
Roman Angonese
Language certificate issued by Bolzano were the only ones accepted
Held: Principle of non-discrimination doesn’t require that the linguistic knowledge in question must have been acquired within the national territory.
Language certificate issued by Bolzano were the only ones accepted
Held: Principle of non-discrimination doesn’t require that the linguistic knowledge in question must have been acquired within the national territory.
Roman Angonese
Walrave and Koch
- Dutch cyclists serving ss pacesetters
- a requiremebt that pacesetters in World Championship must be of same nationality as the cyclists who ride in their lee
HELD:
1) sport is only subject to the Treaties where it constitutes economic activity
2) Art 45 TFEU can’t affect the composition of sporting teams, which will be solely decided on sporting rather than economic grounds
- Dutch cyclists serving ss pacesetters
- a requiremebt that pacesetters in World Championship must be of same nationality as the cyclists who ride in their lee
HELD:
1) sport is only subject to the Treaties where it constitutes economic activity
2) Art 45 TFEU can’t affect the composition of sporting teams, which will be solely decided on sporting rather than economic grounds
Walrave and Koch
Bosman
Belgian national footballer who sought transfer to another football team at the expiration of his contract
-> retained by Liege because the other team couldn’t meet his transfer fee
HELD:
1) Application of transfer fees after the expiry of contractual term is prohibited
2) Nationality requirements against Art 45
Belgian national footballer who sought transfer to another football team at the expiration of his contract
-> retained by Liege because the other team couldn’t meet his transfer fee
HELD:
1) Application of transfer fees after the expiry of contractual term is prohibited
2) Nationality requirements against Art 45
Bosman
Gravier
French national moved to Liege to commence a course in comic strip art
-> required to pay a registration fee that wasn’t applicable to Belgian nationals
HELD:
- Art 45 applies to vocational training as it is in particular likely to promote FMP throughout the Community, by enabling them to obtain a qualification in the MS where they intend to work and by enabling them to complete their training and develop particular talents in the MS whose vocational training programmes include the special subject desired
- Imposition of a registration fee upon non-nationals constitutes discrimination
French national moved to Liege to commence a course in comic strip art
-> required to pay a registration fee that wasn’t applicable to Belgian nationals
HELD:
- Art 45 applies to vocational training as it is in particular likely to promote FMP throughout the Community, by enabling them to obtain a qualification in the MS where they intend to work and by enabling them to complete their training and develop particular talents in the MS whose vocational training programmes include the special subject desired
- Imposition of a registration fee upon non-nationals constitutes discrimination
Gravier
Blaizot
Blaizot with 16 other French plaintiffs study Vet Med in Belgium
HELD: some university degrees are vocational
“In so far as the studies in question provide specific training and skills, that is to say where a student needs the knowledge acquired for the pursuit of a profession, trade or employment”
X with 16 other French plaintiffs study Vet Med in Belgium
HELD: some university degrees are vocational
“In so far as the studies in question provide specific training and skills, that is to say where a student needs the knowledge acquired for the pursuit of a profession, trade or employment”
Blaizot
Lair
French national in G sought maintenance grant for uni studies; previously employed in G with patches on her employment record
HELD: because of her past employment, she was a worker and entitled to maintenance grant
= entitled to maintenance grant owing to her past economic activity
French national in G sought maintenance grant for uni studies; previously employed in G with patches on her employment record
HELD: because of her past employment, she was a worker and entitled to maintenance grant
= entitled to maintenance grant owing to her past economic activity
Lair
