Complete samenvatting Fundamental Rights in Europe 25/26 VU (R_FUNRE)

Fundamental Rights in Europe
Topic: Free Movement of Workers
Table of Contents:
 Definition
 Scope of the freedom
 Derogations: Exceptions and Justifications
Free Movement of Workers
 Workers
- Article 45(1) TFEU: free movement of workers
- Article 45(2) TFEU: prohibition of discrimination
- Article 45(3) TFEU: justification possibilities
- Article 45(4) TFEU: exception
- Workers Regulation 492/2011
- Citizenship Rights Directive 2004/38 (CRD)
- Art. 7 Workers Regulation: equal treatment
 Both provisions prohibit:
- Direct and indirect discrimination and other forms of
discrimination (non-discriminatory; See Graf (C-190/98: ‘too
indirect and uncertain’)
 Definition and Scope workers
- 66/85 Lawrie-Blum; Someone that for a certain period of time
performs services for and under the direction of another person
in return for which they receive remuneration.
o Effective and genuine economic activity and not purely
marginal and ancillary (C-357/89, Raulin)
o Article 7(3) CRD: retaining status of a worker after
termination work
 What about jobseekers?
- (C-292/89, Antonissen): six months and even more providing
there is evidence of continuation of employment search and
genuine chances of being engaged
- Article 14(4)(b) CRD
- Equal treatment of jobseekers ‘as regards access to
employment’ (Case 316/85, Lebon)
 Free Movement of Workers: Derogation possibilities
 Justifications:

, - Direct Discrimination – Only express/explicit justifications
possible
o Public policy, public security or public health (Article 45(3)
TFEU; Also see Articles 27-29 CRD; extend the
justifications to all EU citizens)
o 27 CRD: public policy or public security
o 29 CRD: public health: ‘epidemic potential’
o Proportionality test
- Everything else (i.e. indirect discrimination & non-discriminatory
measures) – express/explicit justifications and implied/implicit
justifications (‘imperative requirements in the public interest’)
possible
o Bosman (non-discrimination) justifications for workers
o C-55/94, Gebhard (non-discrimination) for all EU citizens:
1. Be applied in a non-discriminatory manner (also
includes: indirectly discriminatory measures)
2. Be justified by imperative requirements in the general
interest
3. Be suitable for securing the attainment of the objective
which they pursue
4. Not go beyond what is necessary to attain the objective
that they pursue
 Exceptions
- Article 3(1) Workers Regulation: linguistic requirements ‘by
reason of the nature of the post to be filled’
- Article 45(4) TFEU: employment in public service/public
authority
o 149/79, Commission v. Belgium:
o ‘Direct or indirect participation in the exercise of powers
conferred by public law’
o ‘Duties designed to safeguard the general interests of the
State or of other public authorities’
o ‘Existence of a special relationship of allegiance to the
State’
o Functional test
o Interpreted restrictively

, Europees recht/European Union Law
Belangrijke begrippen met uitleg
 Exception
- That whatever falls under it is located outside the scope of EU
law
- Article 45, paragraph 4 of the TFEU
- ‘’EU free movement rules shall not apply to employment in the
public service’.
- No proportionality test
 Exemption
- If exempted, the measure is no violation of EU internal market
law.
 Justification
- If permitted for justification, a measure must meet the
requirements of the proportionality test.
- Only after the objective is declared admissible for justification by
EU law, we can continue with the proportionality test.
- Admissible for justification:
1. Explicit justification grounds – Article 36 TFEU
2. Mandatory requirements (implied justifications) – Unwritten
justification grounds that a Member State can also rely on
under special conditions
 Proportionality
- Something must be proportionate in relation to something else
- This benchmark is EU law – A fundamental freedom or a
prohibition of discriminations
- Measure under scrutiny
- Fundamental freedom guaranteed by the EU vs. Measure by the
Member State
- Question: Proportionate or not?
- Three step proportionality test:
1. Is the measure suitable to achieve the objective it invokes?
2. Is the measure necessary to attain this objective?
3. Does even the least restrictive measure not excessively interfere
with the EU free movement rights? Proportionality stricto sensu.
– Proportionality stricto sensu: in order to justify a limitation on a
constitutional right, a proper relation should exist between the
benefits gained by fulfilling the purpose and the harm caused to the
constitutional right from obtaining that purpose.

,  Discrimination
- An unequal treatment of comparable situations for a specific
reason
- Prohibition of discriminations
- Equal treatment
 Direct discrimination
- By simply reading the wording of the measure under scrutiny
- We would find the very origin of a product back in the wording of
the measure that we look at
 Indirect discrimination
- If the measure we are looking at does not literally use the origin
- At first sight it does not distinguish according to the origin of a
product
- Yet, in real life it has eventually the same effect as the measure
required to make a distinction based on the origin of a product
 Objective differentiation
- Two situations that are treated differently remain different even if
we exclude all forbidden grounds as possible elements that can
define these situations as being different
 Non- discriminatory restriction
- If a measure does not treat two comparable situations differently
neither directly in its wording nor directly by affecting one
situation less favourable than the other
- Example: closed on Sundays (not possible to sell goods on
Sundays. This is the case for domestic products and for foreign
products. Its non-discriminatory, but still a restriction).