Free Movement Of Workers

Question 1

Process (free movement of workers)

Answer 1

Key legislation
Worker? (Art. 45 TFEU)
Rights of entry and residence (Directive 2004/38)
Rights of equal treatment (Regulation 192/2011)
Justifications
Proportionate (Bosman/Cassis)

Question 2

Key legislation (free movement of workers)

Answer 2

Article 45 TFEU

Directive 2004/38

Regulation 492/2011

Question 3

Lawrie-Blum

Answer 3

A worker is a person who

• performs services for another
• under the control of other person
• and receives remuneration

Question 4

Antonissen

Answer 4

‘Work-seeker’ is also a worker

Question 5

Levin

Answer 5

Part-time workers are workers. Provided that:

• work is effective and genuine
• not too marginal/small scale
• even if income supplemented with public benefits (Kempf)

Question 6

Other workers within scope of Art. 45

Answer 6

Unpaid workers for religious community if:
- Contributes towards community’s economic activities and receives benefit for contribution

Drug addict in rehab not worker (Bettray)
- does not benefit others

Question 7

Rights of entry and exit (Directive)

Answer 7

Art 2-7; 12-18

Question 8

Diatta v Land-Berlin

Answer 8

No need to leave if just separated and no need for spouse to live in same accommodation as worker

Question 9

Surinder Singh

Answer 9

Returning migrant workers can bring non-EU spouses home with them

Question 10

Equal treatment (Regulation 492/2011)

Answer 10

Extends rights guaranteed by Article 45(2) TFEU

Right to take up employment in foreign MS with same priority as nationals, receiving same benefits

Only conditions of linguistic knowledge permitted

Question 11

Public services

Answer 11

Article 45(2) TFEU rights do not apply to employment in public services

(Public service narrowly defined)

Question 12

Justifying distinctly applicable measures

Answer 12

Only justified by Treaty exceptions (Art. 45(3))

Question 13

Indistinctly applicable measures

Answer 13

Indirect discrimination

Non-discriminatory measures (equally difficult for all to satisfy but inhibits free movement)

Question 14

Justifying indistinctly applicable measures

Answer 14

Treaty exceptions (Art. 45 (3) and (4))

Cassis de Dijon approach interpreted by Bosman

Question 15

Bosman

Answer 15

If they pursue a legitimate aim compatible with the a Treaty and justified by pressing reason of public interest

Both ends and means of measures should be necessary (Allue)

Question 16

Art. 27(2) Directive 2004/38

Answer 16

Infringed rights must be based on personal conduct of individual concerned

Question 17

Bosman (re proportionality)

Answer 17

Application of rules must:

• ensure achievement of the aim in question
• not go beyond what is necessary for purpose

Question 18

Adovi and Cornvaille

Answer 18

Cannot treat foreign nationals differently from own citizens