freemovement of workers art 45 Flashcards
what is article 45?
treaty article prohibits discrimination against EU workers on the grounds of nationality
what does Article 45(3) note?
lists a number of Treaty derogations (public security, public policy and public health
What directive is essentially a more detailed version of Article 45 TFEU?
Regulation 492/11
Regulation 492/11 is essentially a more detailed version of Article 45 TFEU what rights does it cover
the right not to be discriminated against in access to employment and the right to equal treatment in employment.
what are the three conditions of a worker as set out in Lawrie Blum?
1) for a certain period of time (a degree of permanency)
2) under the direction of another person (subordination)
3) remuneration (paid)
work has to be be “real and genuine” and not “purely marginal and ancillary” and part of the normal labour market, which case
Trojani
What did Alimanovic hold?
the Court held that job-seekers benefits were covered by the concept of “social assistance”. Therefore, job-seekers can now be excluded from most types of cash benefits.
which part of the the Citizens Rights Directive provides for a number of situations in which workers who are no longer in work retain the status of “worker”.
Art 7(3) But workers who have worked in another Member State for less than a year, they will retain the status of worker for six more months.
Article 45 TFEU is only applicable to cases with a cross-border element
There are 3 main cross border elements, what are they?
- An EU citizen moves to another Member State to work there
- An EU citizen lives in one Member State and works in another Member State (this includes so-called “frontier workers”)
- An EU citizen returns to their home Member State after having worked in another Member State (see C-370/90, Singh)
Article 45 TFEU does not apply to wholly internal situations.
What case demonstrates this?
Saunders
What did case of Saunders state?
Article 45 TFEU was not applicable to Ms Saunders’ case because she never moved between Member States.
(england and northern ireland)
Which case confirmed saunders that Art45 TFEU does not apply to wholly internal situations. meaning it is still possible for Member States to discriminate against their own nationals or against inhabitants of a particular region ?
Walloon government
Article 45 TFEU has vertical direct effect and can be relied on against the State. This has been clear from Van Duyn.
BUT
Article 45 TFEU can also be relied on against private parties who are engaged in collective regulation and who exercise legal autonomy.
What does this mean?
This means that Article 45 TFEU has direct effect against private parties who set the rules in a particular sector.
(extended vertical direct effect)
Article 45 is vertically directly effected and in what 2 other circumstances?
relied on against private parties who are engaged in collective regulation and who exercise legal autonomy.
(extended vertical direct effect)
What 2 cases is an example of Art 45 vertical direct effect?
Walrave and Koch
Bosman
This private association set the rules for all international cycling competitions. As such, the UCI enjoyed a significant amount of power to decide who could participate in its competitions.
On that basis, the Court held that Article 45 TFEU was applicable to the UCI.
what case in which area
Walrave and Kochis an example of Art 45 vertical direct effect
explain case of Walrave and Koch an example of Art 45 vertical direct effect?
This private association set the rules for all international cycling competitions. As such, the UCI enjoyed a significant amount of power to decide who could participate in its competitions.
On that basis, the Court held that Article 45 TFEU was applicable to the UCI.
explain case of Bosman an example of Art 45 vertical direct effect?
• a Belgian football player could rely on Article 45 TFEU against the UEFA – a private association that set the rules for all professional football competitions in Europe
• a Belgian football player could rely on Article 45 TFEU against the UEFA – a private association that set the rules for all professional football competitions in Europe
what case in what area
of Bosman an example of Art 45 vertical direct effect
What case shows Art 45 can also be relied on against trade unions?
Viking
which case shows that Art 45 has full horizontal direct effect?
Agonese, a job applicant challenged a language requirement
This requirement did not come from a collective agreement – it had been set by the bank itself
what are the two rights granted by Art 45?
(1) a right of residence in the host Member State and
(2) a right not to be discriminated against on the ground of nationality.
What are the 3 restrictions Att 45 prohibits?
1) direct discrimination:
2) indirect discrimination (making it more difficult)
3) Art 45 TFEU does not allow Member States to adopt rules which are so-called obstacles to free movement. (e.g requirement to take an exam, it does not have to be discriminatory)
Why was the case of Bosman found to be directly discriminatory?
it made a direct distinction between home nationals and foreign football players.
and UEFA was a private association that set the rules in that sector
What is an example of indirect discrimination?
a language requirement
The rule in Bosman was genuinely non-discriminatory but why did the Court still find this rule to be an obstacle to free movement?
The requirement to pay a transfer fee made it more difficult for football players to exercise their free movement rights, because a foreign club might be less willing to offer them employment if they first had to pay a transfer fee.
In relation to Art 45, what are the justifications available?
. The orthodox rules apply: directly discriminatory rules can only be justified on the basis of the Treaty derogations, which can be found in Article 45(3) TFEU.
public health, policy and security
Also on ‘imperative requirements in the public interest’ or ‘objective justifications’ (similar to mandatory requirements in the field of freemovemetn of goods)
As well as the Treaty derogations under Art 45(3) what other justifications are available?
Also on ‘imperative requirements in the public interest’ or ‘objective justifications’ (similar to mandatory requirements in the field of freemovemetn of goods)
What does Art 45(4) state?
that public services fall outside the scope of application of Ar5 45
