Notes: Free Movement (Workers)

Treaty Provisions
 Article 45 (1) TFEU: free movement for workers shall be secured
 Article 45 (2) TFEU: entails the abolition of discrimination between workers as regards
employment, remuneration and other conditions of work
 Article 45 (3) TFEU: subject to justification on grounds of public policy, public security and
public health
 Article 18 TFEU: within the scope of EU law discrimination on the grounds of nationality is
prohibited

Regulation 49/2011
 Article 1: right to take up employment and pursue such activity in another MS, in accordance
with law governing nationals of that MS
 Article 2: right to take up offers of employment and form contracts of employment
 Article 3: may not apply rules or practices which limit access to employment, unless they are
linguistic requirements
 Article 5: those seeking employment shall receive the same assistance as nationals of the MS
 Article 7:
o 7(1): may not be treated differently from national workers as regards conditions of
employment
o 7(2): equal access to social and tax advantages
 Article 10: children of worker are entitled to education and vocational training on same
terms as nationals of MS

Definition of worker
 Any person who pursues employment activities which are effective and genuine, to the
exclusion of activities on such a small scale as to be regarded as ‘purely marginal and
ancillary’, is a worker (Meeusen)
o Part-time employment even below a subsistence wage is enough: Levin
o “…for a certain period of time a person performs services for and under the
direction of another person in return for which he receives remuneration”: Lawrie-
Blum
 Person seeking work: right to move to the MS to seek work but does not have the same
rights to equal treatment and residence as worker: Antonissen; Lebon

Levin
 British citizen worked part-time in the Netherlands; applied for residence permit
 Held: [45] covers activity that provides less pay than the minimum needed for subsistence;
so long as the activity is effective and genuine
 Judgment: ‘worker’ as EU meaning; “rule cover only the pursuit of effective and genuine
activities to the exclusion of activities on such a small scale as to be regarded as purely
marginal and ancillary”

Lawrie-Blum
  German law restricted non-nationals access to teacher training
 Held: employment relationship = person performs services of some economic value for and
under the direction of another person in return for which he receives remuneration
o Trainee teacher satisfies this irrespective of the legal nature of the relationship

Antonissen
 Belgian citizen was a job-seeker in the UK; UK tried to deport him after imprisonment for
drug offences
 Held: for effectiveness of free movement must be given a reasonable time to find
employment; could deport after 6 months unless evidence of continuing to seek work and a
genuine chance of being employed
 Judgment: “Article [45 (3)] must be interpreted as enumerating, in a non-exhaustive way,
certain rights benefiting nationals of Member States to move freely within the territory of
the other Member States and to say there for the purposes of seeking employment”

Equal Treatment

Lebon
 French national lived in Belgium and was refused social security benefits for child
 Held: social benefits operate in favour of family members only if they are regarded as a
social advantage to the worker himself; workers who have reached 21 and are no longer
dependent may not rely on right to equal treatment, benefits to the child could not be
construed as benefits to the worker

Collins
 Irish national had previously worked part-time in the UK 17 years previously; was refused job
seekers allowance in the UK
 Held: must interpret rights of job-seekers under Article 45 TFEU in light of the more general
right to equal treatment in Article 18 TFEU
o Jobseeker benefits from equal treatment with regard to access to employment; job-
seeker is entitled to a benefit of a financial kind designed to facilitate access to
employment
o Can require a genuine link with labour market but residence condition is
disproportionate and discriminatory
 Judgment: in view of citizenship of union and case law: “it is no longer possible to exclude
from the scope of Article 48 (2) of the Treaty… a benefit of a financial nature intended to
facilitate access to employment in the labour market of a Member State”

Defining a barrier
 Market access test is applied
 Looking for obstacle to access to the employment market: Bosman

Nadin
 Belgian law required company cars to be registered even if business was in another MS
 Held: breach of [45] to require self-employed worker to register a company vehicle made
available by a company in another MS when he does not intend to use it in his home MS
permanently
  Judgment: “it impedes the access of persons resident in Belgium to self-employed work in
the other Member States and is therefore capable of deterring those persons from
exercising their right of free movement”
o For identifying vehicles: goes beyond what is necessary because all MS have
mechanism to identify vehicles

S&G
 Held: court’s interpretation of 56 (free movement of services) can be transposed to 45 (free
movement of workers)
o Effectiveness may require derived right of residence to third country national family
member who is a citizen of that MS; transposes reasoning from Mary Carpenter into
free movement of workers