Free Movement of Workers

• Article 45 TFEU establishes the free movement of workers and forbids discrimination based on nationality.

  • Provides derogations for MSs based on public policy, public security, public health and employment in the public service.

• Also governed by:

  • Regulation 1612/68 – equal treatment of workers

  • Directive 2004/38 – citizens’ rights and family rights

  • Article 7 of Regulation 492/2011 – access to all advantages

    • Access to employment

    • Working conditions

    • Social and tax advanteages

• Art. 45 is both horizontally and vertically effective (Bosman [1995]; Angonese [2000])

  • NB the court has not gone this far in relation to the free movement of goods.

• Need cross-boarder movement to invoke art. 45. This is interpreted broadly:

  • Boukhalfa [1996] – Belgian citizen lived in non-EU state. Worked for the German embassy therefore had crossed boarder.

• Definition of a worker:

  • Levin [1982] - British chamber maid in the Netherlands earning minimum wage.

    • Subsistence worker can still be considered a worker

    • The activity must be ‘effective and genuine’ and not ‘purely marginal and anciallary’

  • Lawrie-Blum [1986] – British trainee teacher in Germany was refused access to employment. Established three-part test for definition of worker:

    • 1) Must perform services of economic value

    • 2) Must be under the supervision of an employer.

    • 3) Must be remuneration in return.

  • Economic value is for the court to determine:

    • Bernini [1992] - Italian citizen training in a factory in the Netherlands for a few hours per week. Held it was a fact specific exercise for the court to determine

  • Purely ancillary work may not be covered:

    • Raulin [1992] – part time work does not exclude worker from Art 45, but the amount of time spent on work may be used to indicate if the work is purely marginal and ancillary.

    • Bettray [1989] – drug addict underwent work as part of his rehabilitation programme. Deemed not to be genuine employment because it was not work of economic value and related to rehabilitation.

      • The court has been heavily criticised for this judgement because the point of the work was to facilitate integration into the job market.

      • Trojani [2004] said it was confined to its facts.

  • Level of remuneration is relatively unimportant:

    • Kempf [1986] – German music teacher worked only 12hrs a week in Netherlands. Relied on social assistance. Held that part-timers do fall within the scope of workers and it does not matter whether their income is supplemented.

    • Steymann [1988] – resident of religious community in Germany carried out manual labour (plumbing) in exchange for meals and accommodation. Held this was effective work for effective remuneration.

• Job-Seekers

  • Antonissen [1991] – Belgian citizen looking for job in the UK. Convicted of unlawful possession of cocaine. Held that Art 45 did cover job-seekers, otherwise the objective of art. 45 would be undermined.

    • However this right is subject to a reasonable time limitation (in UK 6 months) unless the worker can provide evidence that they are still seeking employment at the end of this time.

    • Confirmed in Art. 14 of Directive 2004/38

  • Whilst looking for a job, job-seekers do not have rights to social advantages.

    • Lebon [1987] – social security is an area of sensitivity for MSs and the systems need to be supported.

• Three types of discrimination

  • 1) Direct Discrimination:

    • This includes any measure which targets workers from other states specifically. Illegal under art. 45

    • Levin [1982] – Refusal of residence permit for UK worker in Netherland

  • 2) Indirect Discrimination:

    • This is apparently origin neutral but there is a greater impact on workers from other states. It may be possible to justify this.

    • Groener [1989] – Irish legislation requiring knowledge of the Irish language in Irish Schools. This does not say that only Irish citizens may teach in Irish schools but the effect is felt more by workers from other states.

      • Held this was permissible. Justified if it was proportionate: the level of knowledge of the Irish language had to be proportionate to the specific objective of employment. I.e. PE teachers should not need to know Irish.

      • A linguistic requirement is now expressly provided by Art 3(1) of Regulation 492/2011.

    • Angonese [2000] – Italian...

Buy the full version of these notes or essay plans and more in our GDL EU Law Notes.