#17336 - Free Movement Of Workers - GDL EU Law

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 legislation imposed bi-lingualism requirement in a certain region. The only way to get the certificate was to sit an exam in one centre in that specific region.

    • This was indirect discrimination that effectively prevented workers accessing the market therefore illegal.

• 3) Indistinctly Applicable Measures

  • Bosman [1995] – Belgian footballer who wanted to join a French club. Rules required French club to pay a fee to his old club, this applied irrespective of where the player wanted to go.

    • Held that the transfer rules still directly affected players’ access to the employment market in other MS sand so were capable of impeding the freedom of movement for work

    • Therefore very broad

    • The judgement was criticised heavily because it was viewed as introducing a purely economic consideration to an activity about more than economics.

  • Kranemann [2005] - German legislation allows prospective lawyers to train inside and outside Germany. Trainees were also entitled to travel expenses. However, if it was travel outside Germany it would not be reimbursed.

    • Held that this was a provisions which preclude or deter a national of a MS from leaving his country of origin therefore triggered Art. 45.

    • Obstacles to free movement are only allowed if it pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest.

      • Aims of a purely economic nature cannot constitute pressing reasons of public interest

Justification for Direct Discrimination

• Art. 45(3) TFEU allows discrimination on basis of public policy, public security or public health

• The scope of this derogation is defined in Art 27 of Directive 2004/38:

• In particular Art 27(2) restricts the grounds of public policy or public security:

  • 1) Principle of proportionality shall be applied

  • 2) Shall be based exclusively on the personal conduct of the individual concerned (previous criminal convictions are not in themselves sufficient)

  • 3) The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

These...