EUROPEAN UNION LAW
2025-2026
BUNDLE 7
1. CORE FRAMEWORK: FREE MOVEMENT OF PERSONS
• Constitutional foundation
o Free movement of persons = core pillar of the EU internal market
o Linked to Art 26 TFEU → internal market = area without internal frontiers
o Ensures:
§ Labour mobility
§ Economic integration
§ Individual autonomy
• Key Treaty Provisions
o Economic Freedoms (require economic activity)
§ Art 45 TFEU → Workers
§ Art 49 TFEU → Establishment (self-employed, permanent)
§ Art 56 TFEU → Services (temporary)
o Citizenship-Based Movement
§ Art 20 TFEU → EU citizenship
§ Art 21 TFEU → Right to move and reside freely
o General Principle
§ Art 18 TFEU → Prohibition of nationality discrimination
• Secondary Legislation
o Citizens’ Rights Directive 2004/38 (CRD) → residence & conditions
o Regulation 492/2011 → worker equality rights
o Directive 2014/54 → enforcement
• KEY CONCEPT: ECONOMIC ACTIVITY
o Why it matters
§ Determines:
• Which Treaty provision applies
• Strength of rights
• Legal test used
o De]inition
§ Economic activity requires:
• Work/services
• Remuneration
• Not purely marginal
o Key insight:
§ Economic activity = gateway to stronger protection
§ Citizenship rights = broader but more conditional
, European Union Law
2. WHO IS A “WORKER”?
• Concept explained
o A “worker” is deXined autonomously under EU law, not national law.
• Test (Lawrie-Blum)
o Performs services
o Under direction (subordination)
o For remuneration
o PLUS:
§ Work must be genuine and effective
§ Not marginal or ancillary
• Why this de]inition matters
o Expands protection:
§ Part-time workers
§ Trainees
§ Low earners
o Prevents Member States from:
§ Narrowing access artificially
§ Excluding migrants via technicalities
3. TYPES OF RESTRICTIONS (CORE ANALYSIS)
• Direct Discrimination
o Explicit nationality distinction
o Example: “Only nationals can apply”
o Rule:
§ Almost automatically unlawful
§ Justified ONLY by:
• Public policy
• Public security
• Public health
• Indirect Discrimination
o Neutral rule → disadvantages migrants in practice
o Test (O’Flynn logic):
§ Does it:
• Affect migrants more?
• Make compliance harder?
o Justi]ication:
§ Allowed if:
• Legitimate aim
• Proportionate
Page 2
, European Union Law
• Market Access (VERY IMPORTANT)
o Concept
§ Even non-discriminatory rules are unlawful if they:
• Hinder
• Discourage
• Make movement less attractive
o Why it exists
§ Discrimination test too narrow
§ Many barriers are “neutral” but still restrictive
o Key insight for top marks:
§ EU law protects access to the market, not just equality
o Constitutional signi]icance of market acces
§ Early free movement law focused mainly on nationality discrimination.
§ The market access approach expanded EU scrutiny to non-discriminatory
national measures that hinder mobility.
§ This significantly increased the reach of EU law into domestic regulation.
§ Criticism:
• risks excessive judicial intervention,
• weakens Member State regulatory autonomy,
• blurs limits of EU competences.
§ Supporters argue:
• formal equality alone cannot ensure a functioning internal market
Page 3
, European Union Law
4. STEP-BY-STEP EXAM STRUCTURE
• Step 1: Does EU law apply?
o Cross-border element?
o EU citizen?
• Step 2: Which Treaty provision?
o Worker → Art 45
o Self-employed → Art 49
o Services → Art 56
o No economic activity → Art 21
• Step 3: Is there a restriction?
o Direct discrimination?
o Indirect discrimination?
o Market access obstacle?
• Step 4: Justi]ication (Gebhard test)
o A restriction is lawful only if:
§ Non-discriminatory
§ Legitimate aim
§ Suitable
§ Necessary (least restrictive means)
• Step 5: Conclusion
5. KEY PRINCIPLE: EQUAL TREATMENT
• Meaning
o Migrants must be treated like nationals
• Two forms:
o Direct discrimination → almost always illegal
o Indirect discrimination → may be justified
• Social advantages vs social assistance
o Social advantages (broad – strong protection)
§ Benefits linked to being a worker
§ Example:
• Tax benefits
• Housing
• Education
o Social assistance (weaker protection)
§ Basic welfare support
• Exam tip:
o Always argue a beneXit = social advantage if possible
Page 4
2025-2026
BUNDLE 7
1. CORE FRAMEWORK: FREE MOVEMENT OF PERSONS
• Constitutional foundation
o Free movement of persons = core pillar of the EU internal market
o Linked to Art 26 TFEU → internal market = area without internal frontiers
o Ensures:
§ Labour mobility
§ Economic integration
§ Individual autonomy
• Key Treaty Provisions
o Economic Freedoms (require economic activity)
§ Art 45 TFEU → Workers
§ Art 49 TFEU → Establishment (self-employed, permanent)
§ Art 56 TFEU → Services (temporary)
o Citizenship-Based Movement
§ Art 20 TFEU → EU citizenship
§ Art 21 TFEU → Right to move and reside freely
o General Principle
§ Art 18 TFEU → Prohibition of nationality discrimination
• Secondary Legislation
o Citizens’ Rights Directive 2004/38 (CRD) → residence & conditions
o Regulation 492/2011 → worker equality rights
o Directive 2014/54 → enforcement
• KEY CONCEPT: ECONOMIC ACTIVITY
o Why it matters
§ Determines:
• Which Treaty provision applies
• Strength of rights
• Legal test used
o De]inition
§ Economic activity requires:
• Work/services
• Remuneration
• Not purely marginal
o Key insight:
§ Economic activity = gateway to stronger protection
§ Citizenship rights = broader but more conditional
, European Union Law
2. WHO IS A “WORKER”?
• Concept explained
o A “worker” is deXined autonomously under EU law, not national law.
• Test (Lawrie-Blum)
o Performs services
o Under direction (subordination)
o For remuneration
o PLUS:
§ Work must be genuine and effective
§ Not marginal or ancillary
• Why this de]inition matters
o Expands protection:
§ Part-time workers
§ Trainees
§ Low earners
o Prevents Member States from:
§ Narrowing access artificially
§ Excluding migrants via technicalities
3. TYPES OF RESTRICTIONS (CORE ANALYSIS)
• Direct Discrimination
o Explicit nationality distinction
o Example: “Only nationals can apply”
o Rule:
§ Almost automatically unlawful
§ Justified ONLY by:
• Public policy
• Public security
• Public health
• Indirect Discrimination
o Neutral rule → disadvantages migrants in practice
o Test (O’Flynn logic):
§ Does it:
• Affect migrants more?
• Make compliance harder?
o Justi]ication:
§ Allowed if:
• Legitimate aim
• Proportionate
Page 2
, European Union Law
• Market Access (VERY IMPORTANT)
o Concept
§ Even non-discriminatory rules are unlawful if they:
• Hinder
• Discourage
• Make movement less attractive
o Why it exists
§ Discrimination test too narrow
§ Many barriers are “neutral” but still restrictive
o Key insight for top marks:
§ EU law protects access to the market, not just equality
o Constitutional signi]icance of market acces
§ Early free movement law focused mainly on nationality discrimination.
§ The market access approach expanded EU scrutiny to non-discriminatory
national measures that hinder mobility.
§ This significantly increased the reach of EU law into domestic regulation.
§ Criticism:
• risks excessive judicial intervention,
• weakens Member State regulatory autonomy,
• blurs limits of EU competences.
§ Supporters argue:
• formal equality alone cannot ensure a functioning internal market
Page 3
, European Union Law
4. STEP-BY-STEP EXAM STRUCTURE
• Step 1: Does EU law apply?
o Cross-border element?
o EU citizen?
• Step 2: Which Treaty provision?
o Worker → Art 45
o Self-employed → Art 49
o Services → Art 56
o No economic activity → Art 21
• Step 3: Is there a restriction?
o Direct discrimination?
o Indirect discrimination?
o Market access obstacle?
• Step 4: Justi]ication (Gebhard test)
o A restriction is lawful only if:
§ Non-discriminatory
§ Legitimate aim
§ Suitable
§ Necessary (least restrictive means)
• Step 5: Conclusion
5. KEY PRINCIPLE: EQUAL TREATMENT
• Meaning
o Migrants must be treated like nationals
• Two forms:
o Direct discrimination → almost always illegal
o Indirect discrimination → may be justified
• Social advantages vs social assistance
o Social advantages (broad – strong protection)
§ Benefits linked to being a worker
§ Example:
• Tax benefits
• Housing
• Education
o Social assistance (weaker protection)
§ Basic welfare support
• Exam tip:
o Always argue a beneXit = social advantage if possible
Page 4
