Ch 13: free movement of natural persons and citizenship of the Union
Lecture 5, 6 + tutorial (ZIE BENEDEN STEPS): FM of persons: workers and quasi-workers
(26(2)), EU citizenship, cross-border rule
Economically active persons
o Employed
(art. 45 p. 40 notes+ 18(1) + reg. 492/2011 + dir. 2004/38) (art. 20-25)
o Self-employed [freedom of establishment] (art. 49 + 18) (art. 20-25)
Non-economically active persons (residual art. 20-25 + directive)
Art. 20 & 21: FM of persons as ‘general’ EU citizenship right
What type of discrimination? (Discrimination violates art. 45 and 18 TFEU and):
Article 45 Direct effect
Direct discrimination: regulation FM Workers (zie case law pack p. 110):
o Art. 7(1): no discrimination (treated less favorably/differently) by reason of
nationality (Bosman)
o 7(2): shall enjoy same social and tax advantages as national worker (O’Flynn)
Limitations justified only if proportionate
o 7(3): access to vocational training
o 8: membership in trade unions
o 9: access to housing (same benefits to non-nationals)
o 1(1)(2): right to take up employment in territory of another MS (host country
rule) with same priority as that MS nationals
o 2
o 3(1): discrimination with regards to employment
Indirect discrimination:
o Rule that is neutral in terms of nationality, but affects non-nationals more
severely than MS nationals (conditions of employment more easily satisfied
by MS nationals/gives advantage to them) (art. 2, 3(1), 7 Reg.)
o EXCEPTION: language conditions lawful when linguistic knowledge is required
by reason of the nature of the post to be filled. (art. 3(1)(b)) Language
requirements must be objectively clear (Angonese)
Non-discriminatory/indistinctively applicable measure (Bosman)
o Provisions which preclude/deter a national from leaving his country of origin
to exercise his right to FM constitute an obstacle to that freedom (even if they
apply without regard to nationality of workers concerned
Exceptions: 1. rules pursue legit aim 2. Justified by pressing reason of
public interest
Restriction art. 45: limitations justified for public policy, public security or public
health
Exception public service art. 45(4)? (Commission v Belgium) individual assessment
required/narrow interpretation!
o Direct/indirect participation in powers conferred by public law
o Special relationship of loyalty to State
o Responsibility for safeguarding general interests of State
Who is a worker? CJEU monopoly of interpretation (Lawrie-blum)
o Stability (employment certain period of time)
, o Direction (perform service under direction of another person)
o Remuneration
Self-employed? (Gebhard)
o Permanent/semi-permanent settlement in another MS
o Provides service in professional capacity in ‘stable’ and ‘continuous’ basis (art.
49)
DISTINCTION: between service provision ‘stable and continuous basis’
(49) and temporary (art. 56)
Art. 49: case of freedom of establishment host State is
principal regulator
Art. 56: home State is principal regulator
o No subordination
o Under person’s own responsibility (direction)
o In return for remuneration
o (no illegal activity)
Part-time workers
o Covered by art. 45
(even when income below minimum level of subsistence (Levin) (may
supplement income with other employment or personal resources),
Also if not able to meet needs out of own income (Kempf)
o Limits: activity must be “effective and genuine and not of such a small scale as
to be considered as purely marginal and ancillary” (Levin)
o Decisive factor: Is type of activity considered part of normal job market?
(Trojani)
FM quasi-workers (currently not employed)
o After employment right to retain status of worker
(art. 45(3)(a) + 7(3) CD. (case law pack p. 112) retain worker status
(see circumstances)
o Before employment right of jobseekers
(first time) jobseekers
(art. 45(3)(a) art. 6(1) dir. 3 month residence).
After 3 months (ANtonissen) right to reside to a reasonable
time to find a job (6 months), after that, no automatic
expulsion (14(4)(b) dir.) + reasonable perspectives job
Right to access jobseeker allowance? (Collins)
Genuinely seeking job, therefore worker and entitled to claim
same benefits as nationals related to employment
Must be genuine link between jobseeker and employment
market of state
(reg. art. 7(2) + 5): same social and tax advantages as national
workers + receive same assistance as nationals for seeking
employment
(dir. 7(3) + 24(1)(2): right of residence family+ equal treatment)
Lecture 5, 6 + tutorial (ZIE BENEDEN STEPS): FM of persons: workers and quasi-workers
(26(2)), EU citizenship, cross-border rule
Economically active persons
o Employed
(art. 45 p. 40 notes+ 18(1) + reg. 492/2011 + dir. 2004/38) (art. 20-25)
o Self-employed [freedom of establishment] (art. 49 + 18) (art. 20-25)
Non-economically active persons (residual art. 20-25 + directive)
Art. 20 & 21: FM of persons as ‘general’ EU citizenship right
What type of discrimination? (Discrimination violates art. 45 and 18 TFEU and):
Article 45 Direct effect
Direct discrimination: regulation FM Workers (zie case law pack p. 110):
o Art. 7(1): no discrimination (treated less favorably/differently) by reason of
nationality (Bosman)
o 7(2): shall enjoy same social and tax advantages as national worker (O’Flynn)
Limitations justified only if proportionate
o 7(3): access to vocational training
o 8: membership in trade unions
o 9: access to housing (same benefits to non-nationals)
o 1(1)(2): right to take up employment in territory of another MS (host country
rule) with same priority as that MS nationals
o 2
o 3(1): discrimination with regards to employment
Indirect discrimination:
o Rule that is neutral in terms of nationality, but affects non-nationals more
severely than MS nationals (conditions of employment more easily satisfied
by MS nationals/gives advantage to them) (art. 2, 3(1), 7 Reg.)
o EXCEPTION: language conditions lawful when linguistic knowledge is required
by reason of the nature of the post to be filled. (art. 3(1)(b)) Language
requirements must be objectively clear (Angonese)
Non-discriminatory/indistinctively applicable measure (Bosman)
o Provisions which preclude/deter a national from leaving his country of origin
to exercise his right to FM constitute an obstacle to that freedom (even if they
apply without regard to nationality of workers concerned
Exceptions: 1. rules pursue legit aim 2. Justified by pressing reason of
public interest
Restriction art. 45: limitations justified for public policy, public security or public
health
Exception public service art. 45(4)? (Commission v Belgium) individual assessment
required/narrow interpretation!
o Direct/indirect participation in powers conferred by public law
o Special relationship of loyalty to State
o Responsibility for safeguarding general interests of State
Who is a worker? CJEU monopoly of interpretation (Lawrie-blum)
o Stability (employment certain period of time)
, o Direction (perform service under direction of another person)
o Remuneration
Self-employed? (Gebhard)
o Permanent/semi-permanent settlement in another MS
o Provides service in professional capacity in ‘stable’ and ‘continuous’ basis (art.
49)
DISTINCTION: between service provision ‘stable and continuous basis’
(49) and temporary (art. 56)
Art. 49: case of freedom of establishment host State is
principal regulator
Art. 56: home State is principal regulator
o No subordination
o Under person’s own responsibility (direction)
o In return for remuneration
o (no illegal activity)
Part-time workers
o Covered by art. 45
(even when income below minimum level of subsistence (Levin) (may
supplement income with other employment or personal resources),
Also if not able to meet needs out of own income (Kempf)
o Limits: activity must be “effective and genuine and not of such a small scale as
to be considered as purely marginal and ancillary” (Levin)
o Decisive factor: Is type of activity considered part of normal job market?
(Trojani)
FM quasi-workers (currently not employed)
o After employment right to retain status of worker
(art. 45(3)(a) + 7(3) CD. (case law pack p. 112) retain worker status
(see circumstances)
o Before employment right of jobseekers
(first time) jobseekers
(art. 45(3)(a) art. 6(1) dir. 3 month residence).
After 3 months (ANtonissen) right to reside to a reasonable
time to find a job (6 months), after that, no automatic
expulsion (14(4)(b) dir.) + reasonable perspectives job
Right to access jobseeker allowance? (Collins)
Genuinely seeking job, therefore worker and entitled to claim
same benefits as nationals related to employment
Must be genuine link between jobseeker and employment
market of state
(reg. art. 7(2) + 5): same social and tax advantages as national
workers + receive same assistance as nationals for seeking
employment
(dir. 7(3) + 24(1)(2): right of residence family+ equal treatment)
