Problem 7
What is the free movement of workers (including the justifications & limitations)?
Market citizens are EU citizen who are economically active. In this regard, the CRD differentiates
between workers and self-employed persons (art 7 CRD). Art. 45 lid 3 sub c TFEU and art 7 lid 1 CRD
workers have a right of residence in the territory of another member state in this capacity as
workers. Art 7 CRD prohibits direct and indirect discriminations and non-discriminations measures
(Graf case too indirect and uncertain).
So, Art 45 TFEU free movement of workers:
- Lid 2 prohibition of discrimination
- Lid 3 justifications
- Lid 4 exceptions.
Worker
A worker is someone that for a certain period performs services for and under the direction of
another in return for which he receives remuneration (Lawrie-blum case). To be regarded as a
worker, a person must perform effective and genuine activities to the exclusion of activities on such a
small scale as to be purely marginal and ancillary. Part-time employment is not automatically
excluded from the free movement of workers, provided that the services preformed are not purely
marginal and ancillary (Raulin case). Art. 7 lid 3 TFEU retaining status of a worder after tarnation
work.
In Trojani a French national, who travelled to Belgium without any prior arrangements, ended up in a
Salvation Army hostel, where he performed various small jobs in exchange for food and board and a
small amount of pocket money. The CoJ left it to the national court to determine whether the
services performed by Trojani could be regarded as a real and genuine economic activity. The AG
concluded that Trojani was not a worker within the meaning of Art. 45 TFEU. It is important to assess
whether an activity can be seen as ‘forming part of the normal labour market. Then art 45 TFEU is
applicable, not art 49 and 56 TFEU (about self employed activities and an activity carried out on a
permanent basis or at least without a foreseeable limit to its duration). Art. 21 TFEU gives every UC
the tight to reside in the territory of a MS. This can be subject to certain limitations and conditions
(Baumast these limitations should be applied in accordance with the general principles of law and in
particular the principle of proportionality).
Jobseeker
Persons only acquire the status of a worker when they accept employment in another member state
(Raulin case). A person looking for work is not yet a worker in the meaning of Art. 45 TFEU. But under
certain conditions, persons seeking employment also benefit from the rights afforded under Art. 45
TFEU. A person that seeking employment should be allowed to remain in another member state for
at least six months. Moreover, after the expiry of this period, the person concerned cannot be
required to leave if they are able to demonstrate that they are continuing to seek employment and
have a genuine chance of being engaged (Antoinssen case; codified in art 14 lid 4 TFEU and art 7 lid 3
CRD).
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What is the free movement of workers (including the justifications & limitations)?
Market citizens are EU citizen who are economically active. In this regard, the CRD differentiates
between workers and self-employed persons (art 7 CRD). Art. 45 lid 3 sub c TFEU and art 7 lid 1 CRD
workers have a right of residence in the territory of another member state in this capacity as
workers. Art 7 CRD prohibits direct and indirect discriminations and non-discriminations measures
(Graf case too indirect and uncertain).
So, Art 45 TFEU free movement of workers:
- Lid 2 prohibition of discrimination
- Lid 3 justifications
- Lid 4 exceptions.
Worker
A worker is someone that for a certain period performs services for and under the direction of
another in return for which he receives remuneration (Lawrie-blum case). To be regarded as a
worker, a person must perform effective and genuine activities to the exclusion of activities on such a
small scale as to be purely marginal and ancillary. Part-time employment is not automatically
excluded from the free movement of workers, provided that the services preformed are not purely
marginal and ancillary (Raulin case). Art. 7 lid 3 TFEU retaining status of a worder after tarnation
work.
In Trojani a French national, who travelled to Belgium without any prior arrangements, ended up in a
Salvation Army hostel, where he performed various small jobs in exchange for food and board and a
small amount of pocket money. The CoJ left it to the national court to determine whether the
services performed by Trojani could be regarded as a real and genuine economic activity. The AG
concluded that Trojani was not a worker within the meaning of Art. 45 TFEU. It is important to assess
whether an activity can be seen as ‘forming part of the normal labour market. Then art 45 TFEU is
applicable, not art 49 and 56 TFEU (about self employed activities and an activity carried out on a
permanent basis or at least without a foreseeable limit to its duration). Art. 21 TFEU gives every UC
the tight to reside in the territory of a MS. This can be subject to certain limitations and conditions
(Baumast these limitations should be applied in accordance with the general principles of law and in
particular the principle of proportionality).
Jobseeker
Persons only acquire the status of a worker when they accept employment in another member state
(Raulin case). A person looking for work is not yet a worker in the meaning of Art. 45 TFEU. But under
certain conditions, persons seeking employment also benefit from the rights afforded under Art. 45
TFEU. A person that seeking employment should be allowed to remain in another member state for
at least six months. Moreover, after the expiry of this period, the person concerned cannot be
required to leave if they are able to demonstrate that they are continuing to seek employment and
have a genuine chance of being engaged (Antoinssen case; codified in art 14 lid 4 TFEU and art 7 lid 3
CRD).
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