Stappenplannen:
The express derogations and the rule of reason both apply if you want restriction for treaty. However this is a
directive (and not a treaty article), so harmonization, so there are only justifications in the directive itself.
Overview discrimination scheme:
1. Which is the applicable ground and instrument?
2 Personal scope: is the person covered?
3. Material scope: is the benefit or advantage covered?
4 Is it direct discrimination? Justification/exception applicable?
5. Is it indirect discrimination?
- Exception or justification?
- Justification: is there:
- Legitimate aim?
- Adequate (to reach the aim)?
- Necessary (to reach the aim)
(proportional)?
WEEK 1:
How to approach a case?
Free movement of persons:
Step 1: always determine whether the situation falls under the scope of the free movement
of persons. In order to determine that, you have to see whether it falls under the personal
and material scope:
- Personal scope: does this person have the nationality of a member state? When it
comes to a legal person: does this legal person (company) have its corporate seat
in a member state? Where has this company been incorporated?
- Material scope > two questions:
o Is there an inter-state element? Cross boarder. So is there a link between two
different member-states? If there is not: there might be a strictly internal
situation, so EU law would not apply.
o Is there some sort of economic activity? Are there services provided on the
market or some sort of remuneration? What kind of activity? Temporary or
fixed/permanent? Does the person perform the service under direction of
someone or is he self-employed? Is it spontaneous or on regular basis? These
questions are derived on mainly case law.
- Different Treaty regimes:
o Article 45 TFEU (and regulation 492/11): free movement of workers
o Article 49 TFEU (and directive 2006/123): freedom of establishment (CJEU
Gebhard)
o Article 56/57 TFEU (and directive 2006/123): free movement of services (CJEU
Alpine Investments and Watts)
o Article 21 TFEU: migrant/ other noneconomically active
o Article 20 TFEU: non migrant
, o If a case falls under the scope of art. 49 and 56 TFEU, check whether the
Services Directive applies, this is specialized and should be applied first (lex
specialis). To check if it applies, you have to look into article 2 and 3 of the
Directive.
Step 2: does this limiting national measure on free movement of this person form a
restriction? In a classical sense the CJEU distinguishes two types of restrictions:
- Direct discrimination: restriction based on your origin/nationality. For example:
you cannot perform in something because you are Greek.
o Can only be justified by an express treaty derogation!
- Indirect discrimination: seemingly general/neutral rule that especially effects
persons from outside the member state. It targets others more than the own
nationals of the regulating state.
- Market-access hindering, because there are more rules that limit the free
movement but are not discriminatory. Approach on which rules form a limitation
on freedoms. See the cases: Gebhard, Alpine Investments and Watts.
Step 3: is there a justification for the measure? Two types:
- Express treaty derogations: you can find these in the treaty itself. (45(3), 51, 52 and
62 TFEU). Direct discrimination can only be justified by this one!
- Public interest justifications/rule of reason: open category, not in the treaty, mostly
in case law of the CJEU. For instance environmental issues. Public interest that is
not mentioned in the treaty. (zie opdracht 1.3)
Step 4: is the measure that is justified also proportionate? There are three subcategories:
- Is the measure suitable/appropriate for the goal that it is trying to obtain?
- Is the measure necessary? Are there other less restrictive measures that could be
applied that would obtain the goal just as well?
- Is the measure proportionate Stricto Sensu? Does this measure weigh up to the
restriction that it causes for the free movement of persons? Is it more important
than the freedom? Very much political issue.
, WEEK 2:
Movement of workers, posting of workers and movement of persons
Stappenplan which legal source to use? Workers/posting/persons:
Question: is the Dutch employer allowed to apply a different period of notice for the worker
with a German nationality on the basis of nationality?
- Info: There is a national of a member state (Hans from Germany) who crosses the
border to the Netherlands to work there. Hans is in a hierarchical relationship with
his employer, so he cannot be qualified as a self-employee, so article 49 does not
apply. Hans is a worker (definition is explained in lecture).
- Which legal source to use?
o Article 45 and regulation 492/2011: worker. (laatste Alinea)
§ Direct discrimination is forbidden: only treaty exceptions: art. 45 (3)
and 45(4)
§ Indirect discrimination: treaty exceptions and objective justification
possible.
o Article 56 and directive 96/71: posted worker. Equal treatment is restricted to
art. 3. Hans is not a posted worker.
o Article 21 and directive 2004/38: non-economically active. Equal treatment
for persons legally residing according to art. 7.
- There is a breach of article 7 paragraph 1 of the regulation 492/2011, which is a
translation of article 45 paragraph 2. There is direct discrimination, which can only be
justified by treaty derogations, which can be found in article 45 paragraph 3 and 4.
There is no justification why the employer is acting this way, so the answer is that the
employer is not allowed to apply a different period of notice on the basis of
nationality.
Stappenplan workers:
Step 1:
Personal and material scope
1. performing genuine and real work of economic value
2. for wage/renumeration
3. for and under the direction/ under supervision of another person
à if there is a worker, art. 45 and regulation 492/2011 apply.
Step 2: is there a breach of art. 45 and/or the regulation?
Step 3: is there a justification?
- Direct discrimination: only treaty exceptions of art. 45 (3) and 45 (4)
- Indirect discrimination: treaty exception or objective justification
Step 4: is the measure that is justified also proportionate? There are three subcategories:
- Is the measure suitable/appropriate for the goal that it is trying to obtain?
- Is the measure necessary? Are there other less restrictive measures that could be
applied that would obtain the goal just as well?
The express derogations and the rule of reason both apply if you want restriction for treaty. However this is a
directive (and not a treaty article), so harmonization, so there are only justifications in the directive itself.
Overview discrimination scheme:
1. Which is the applicable ground and instrument?
2 Personal scope: is the person covered?
3. Material scope: is the benefit or advantage covered?
4 Is it direct discrimination? Justification/exception applicable?
5. Is it indirect discrimination?
- Exception or justification?
- Justification: is there:
- Legitimate aim?
- Adequate (to reach the aim)?
- Necessary (to reach the aim)
(proportional)?
WEEK 1:
How to approach a case?
Free movement of persons:
Step 1: always determine whether the situation falls under the scope of the free movement
of persons. In order to determine that, you have to see whether it falls under the personal
and material scope:
- Personal scope: does this person have the nationality of a member state? When it
comes to a legal person: does this legal person (company) have its corporate seat
in a member state? Where has this company been incorporated?
- Material scope > two questions:
o Is there an inter-state element? Cross boarder. So is there a link between two
different member-states? If there is not: there might be a strictly internal
situation, so EU law would not apply.
o Is there some sort of economic activity? Are there services provided on the
market or some sort of remuneration? What kind of activity? Temporary or
fixed/permanent? Does the person perform the service under direction of
someone or is he self-employed? Is it spontaneous or on regular basis? These
questions are derived on mainly case law.
- Different Treaty regimes:
o Article 45 TFEU (and regulation 492/11): free movement of workers
o Article 49 TFEU (and directive 2006/123): freedom of establishment (CJEU
Gebhard)
o Article 56/57 TFEU (and directive 2006/123): free movement of services (CJEU
Alpine Investments and Watts)
o Article 21 TFEU: migrant/ other noneconomically active
o Article 20 TFEU: non migrant
, o If a case falls under the scope of art. 49 and 56 TFEU, check whether the
Services Directive applies, this is specialized and should be applied first (lex
specialis). To check if it applies, you have to look into article 2 and 3 of the
Directive.
Step 2: does this limiting national measure on free movement of this person form a
restriction? In a classical sense the CJEU distinguishes two types of restrictions:
- Direct discrimination: restriction based on your origin/nationality. For example:
you cannot perform in something because you are Greek.
o Can only be justified by an express treaty derogation!
- Indirect discrimination: seemingly general/neutral rule that especially effects
persons from outside the member state. It targets others more than the own
nationals of the regulating state.
- Market-access hindering, because there are more rules that limit the free
movement but are not discriminatory. Approach on which rules form a limitation
on freedoms. See the cases: Gebhard, Alpine Investments and Watts.
Step 3: is there a justification for the measure? Two types:
- Express treaty derogations: you can find these in the treaty itself. (45(3), 51, 52 and
62 TFEU). Direct discrimination can only be justified by this one!
- Public interest justifications/rule of reason: open category, not in the treaty, mostly
in case law of the CJEU. For instance environmental issues. Public interest that is
not mentioned in the treaty. (zie opdracht 1.3)
Step 4: is the measure that is justified also proportionate? There are three subcategories:
- Is the measure suitable/appropriate for the goal that it is trying to obtain?
- Is the measure necessary? Are there other less restrictive measures that could be
applied that would obtain the goal just as well?
- Is the measure proportionate Stricto Sensu? Does this measure weigh up to the
restriction that it causes for the free movement of persons? Is it more important
than the freedom? Very much political issue.
, WEEK 2:
Movement of workers, posting of workers and movement of persons
Stappenplan which legal source to use? Workers/posting/persons:
Question: is the Dutch employer allowed to apply a different period of notice for the worker
with a German nationality on the basis of nationality?
- Info: There is a national of a member state (Hans from Germany) who crosses the
border to the Netherlands to work there. Hans is in a hierarchical relationship with
his employer, so he cannot be qualified as a self-employee, so article 49 does not
apply. Hans is a worker (definition is explained in lecture).
- Which legal source to use?
o Article 45 and regulation 492/2011: worker. (laatste Alinea)
§ Direct discrimination is forbidden: only treaty exceptions: art. 45 (3)
and 45(4)
§ Indirect discrimination: treaty exceptions and objective justification
possible.
o Article 56 and directive 96/71: posted worker. Equal treatment is restricted to
art. 3. Hans is not a posted worker.
o Article 21 and directive 2004/38: non-economically active. Equal treatment
for persons legally residing according to art. 7.
- There is a breach of article 7 paragraph 1 of the regulation 492/2011, which is a
translation of article 45 paragraph 2. There is direct discrimination, which can only be
justified by treaty derogations, which can be found in article 45 paragraph 3 and 4.
There is no justification why the employer is acting this way, so the answer is that the
employer is not allowed to apply a different period of notice on the basis of
nationality.
Stappenplan workers:
Step 1:
Personal and material scope
1. performing genuine and real work of economic value
2. for wage/renumeration
3. for and under the direction/ under supervision of another person
à if there is a worker, art. 45 and regulation 492/2011 apply.
Step 2: is there a breach of art. 45 and/or the regulation?
Step 3: is there a justification?
- Direct discrimination: only treaty exceptions of art. 45 (3) and 45 (4)
- Indirect discrimination: treaty exception or objective justification
Step 4: is the measure that is justified also proportionate? There are three subcategories:
- Is the measure suitable/appropriate for the goal that it is trying to obtain?
- Is the measure necessary? Are there other less restrictive measures that could be
applied that would obtain the goal just as well?
