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FREE MOVEMENT OF WORKERS
Article 45 TFEU establishes the free movement of workers and forbids discrimination based on nationality.
o Provides derogations for MSs based on public policy, public security, public health and employment in the public service.
Also governed by:
o 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
Social and tax advanteages
Art. 45 is both horizontally and vertically effective (Bosman
; Angonese )
o 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:
o Boukhalfa  - Belgian citizen lived in non-EU state.
Worked for the German embassy therefore had crossed boarder.
Definition of a worker:
o Levin  - 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'
o Lawrie-Blum  - 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.
o Economic value is for the court to determine:
Bernini  - 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  - 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  - 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.
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