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Free Movement of Persons _______________________________________________________
Economic Movement Art 45 TFEU Abolition of any discrimination based on nationality in regards to:
- Other conditions of work & employment Exemptions on grounds of:
- Public policy
- Public security
- Public health
- & employment in the public service Effect of Art 45 TFEU Treaty provisions are directly effective Walrave Sports regulating body issued a rule insisting 'stayers' in motorcycle racing were of the same nationality. Challenged as against EU law Held: direct effect of Art 45 not only vertical - applies to any "rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services" Bosman Footballer transfer fees challenged on Art 45 grounds Held: violation acknowledged; transfer must be free Angonese Bank required bilingualism certificate from Italy. Mr Angonese studied in Austria and asked that his degree certificate be taken as substitute but they refused Held: a form of discrimination based on nationality. Horizontal direct effect was possible because Art 45 was "drafted in general terms and is not specifically addressed to the MS" Scope Art 45 is designed towards the movement of workers cross-borders, commuting or returning to the state of nationality Boukhalfa Belgian national in Algeria (non MS) working in German Embassy Held: Art 45 triggered by sufficiently close link to Germany - he was under German legislation as employer
Definition of Worker Levin Chambermaid being paid less than minimum wage - could she qualify as a worker?
Held: wide definition of worker:
- Not a state definition, but a European definition in the interests of uniformity
- Free movement is a fundamental objective of the EU & therefore protection of it must be broad
- Art 45 covers part-time work
- The activity must, however, be genuine and effective, not marginal and ancillary Lawrie-Blum Qualifying teacher at a school paid less than qualified teacher Held: 3 elements to comprise 'genuine and effective' employment activity:
1. Economic value
2. Must be under supervision of someone
3. Must be remuneration in return Lehtonen Emphasises the 2nd criterion: "a person performs services for and under the direction of another person, in return for which he receives remuneration" Interpreting the definition of a worker in the courts: Bernini Italian trainee in a Danish factory for ten weeks with low wages & few working hours Held: could qualify as worker dependent on whether he spent enough hours to "familiarise" himself with the work - the court must look at all the circumstances to determine this question Meeusen Relative to the owner - could they be a worker?
Held: the fact-specific investigation of the court will not be limited by relation between employee & employer Remuneration Kempf 12 hrs work a week music teaching supplemented by benefits Held: part time work counts & reliance on social security or other lawful subsistence irrelevant in the estimation of 'genuine and effective work' Steymann Religious arrangement whereby plumbing was done in exchange for meals Held: he could be a worker within the meaning of Art 45 as the "indirect quid pro quo for genuine and effective work" mapped onto the model Marginal/Ancillary Activities
Raulin 60 hours work over course of 8 months on an on-call contract Held: whilst this arrangement could be a worker within the meaning of Art 45 it required the court to investigate the irregular nature & limitation over the type of work Thus in the context of occasional employment, the following may go against a claimant:
1. Irregularity of hours
2. Limited duration of services performed Restrictive reasoning: Bettray Low remuneration for rehab with ex-drug addicts under the Social Employment Law, estimated at a 1/3 of normal worker output Held: he did not come under Art 45 as this case introduced the principle that it should be within the "normal labour market" - focus on non-commerciality of the labour (including its adaptions to suit the worker)
? AG: "unusual circumstances" however acknowledged "substantial" activities This has been criticised as Bettray did perform the essential characteristics of an employment relationship (work under supervision for remuneration) and 1/3 output correspondend with Steymann principle including part-time work
? Gareth Chalmers: critical as it appears to be a "foundation-free principle" but substantively it "exacerbate[s] the danger of disability discrimination" Right to Equal Treatment Art 7 Regs on freedom of movement for workers within the Union Equal treatment with regards to:
- Reinstatement/employment after unemployment
- Social & tax advantages
- Vocational training Nullifies discriminatory agreements in breach of this Art 3: direct & indirect discrimination Direct Discrimination Levin Wouldn't issue residence permit Held: free movement of workers entails the abolition of "any discrimination based on nationality" Indirect Discrimination Groener
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