Workers
“SO FAR AS THE FREE MOVEMENT OF WORKERS IS CONCERNED, IT IS ABUNDANTLY CLEAR THAT
THE COURT OF JUSTICE HAS HAD VERY LITTLE INFLUENCE ON THE DEVELOPMENT OF THE LAW.
THE KEY ENTITLEMENTS OF EU MIGRANT WORKERS, AND THEIR EXTENSIVE SCOPE, HAVE ALWAYS
BEEN CLEARLY ARTICULATED IN THE TREATIES AND THE SECONDARY LEGISLATION.”
CRITICALLY DISCUSS.
INTRODUCTION (TOTAL: 28 CASES; 11 ACT SECTIONS; 5 ACADEMICS)
- Disagree with the statement as it undermines the pivotal role that the court has played.
- No codified statutory definition – Article 45 TFEU does not define the term ‘worker’. Therefore, this was left for
the CJEU to decide.
- Court has been active: particularly in defining ‘worker’; non-discrimination; equal treatment; pre and post-
employment rights.
1. DEFINING THE CONCEPT OF WORKER (10 CASES; 1 ACT; 3 ACADEMICS)
- Hoekstra – worker is for the EU to define and not national law.
- Boukhalfa – all contractual relationships of employment must be entered into or must take effect within the
territory of the Union. It also holds that contractual relationships of employment must retain a sufficiently close
link with the union.
- Levin – the court adopted a broad definition of worker – ‘the concept of a worker defines the field of application
of one of the fundamental freedoms guaranteed by the treaty and, as such, may not be interpreted restrictively’
- Lawrie-Blum – provided a basic test for who qualifies as a worker: for a certain period of time a person performs
services for and under the direction of another person in return for which he receives remuneration.
- A) Services performed for and under the direction of another:
o Asscher – a director of a company would not be a worker as his activity is not carried out in the context of a
relationship of subordination.
- B) Remuneration for services performed:
o Steymann – meeting of material needs constituted renumeration;
o Bettray – as the work was a means of rehabilitation, he was not a worker under Article 45.
o Academic: Spaventa questions whether the difference in treatment was due to an additional ‘qualitative’
dimension, ‘so that less ‘attractive’ union citizens might enjoy, for that reason only, fewer rights than others’
o Academic: O’Brien contends that the court ‘circumvented its own reasoning’ because an ex drug addict is a
‘less attractive claimant’ than someone in a religious organisation.
- C) Activities genuine and effective
o Raulin – the work undertaken must not be ‘marginal and ancillary’
o Academic: O’Brien contends that this test is ‘disability blind’ as there is no recognition that what work is
genuine and effective may differ between different groups of people, and thus it means that those in
different circumstances are frequently inappropriately subjected to the same test.
o Trojani – the national court must ascertain whether the activities are capable of being regarded as forming
part of a national labour market. It was left for national courts to decide whether the work is genuine and
effective.
o Part time workers
Levin – part time workers can qualify even if wages fall below national subsistence level.
Kempf – part time workers can qualify even if Cl must supplement their income from public/private
funds.
Raulin – part time workers can qualify even if the number of hours worked is incredibly small.
o Academic: Although it looks like the court have really broadened the definition of workers here, O’Brien
comments that MS exploit this at administrative level, and they are not applying the rules as the CJEU is. For
instance, she reports that the UK have a minimum wage per week of £150, and so people who earn less than
this, whilst are technically workers, do not fall within the scope of the definition of EU migrant worker.
“SO FAR AS THE FREE MOVEMENT OF WORKERS IS CONCERNED, IT IS ABUNDANTLY CLEAR THAT
THE COURT OF JUSTICE HAS HAD VERY LITTLE INFLUENCE ON THE DEVELOPMENT OF THE LAW.
THE KEY ENTITLEMENTS OF EU MIGRANT WORKERS, AND THEIR EXTENSIVE SCOPE, HAVE ALWAYS
BEEN CLEARLY ARTICULATED IN THE TREATIES AND THE SECONDARY LEGISLATION.”
CRITICALLY DISCUSS.
INTRODUCTION (TOTAL: 28 CASES; 11 ACT SECTIONS; 5 ACADEMICS)
- Disagree with the statement as it undermines the pivotal role that the court has played.
- No codified statutory definition – Article 45 TFEU does not define the term ‘worker’. Therefore, this was left for
the CJEU to decide.
- Court has been active: particularly in defining ‘worker’; non-discrimination; equal treatment; pre and post-
employment rights.
1. DEFINING THE CONCEPT OF WORKER (10 CASES; 1 ACT; 3 ACADEMICS)
- Hoekstra – worker is for the EU to define and not national law.
- Boukhalfa – all contractual relationships of employment must be entered into or must take effect within the
territory of the Union. It also holds that contractual relationships of employment must retain a sufficiently close
link with the union.
- Levin – the court adopted a broad definition of worker – ‘the concept of a worker defines the field of application
of one of the fundamental freedoms guaranteed by the treaty and, as such, may not be interpreted restrictively’
- Lawrie-Blum – provided a basic test for who qualifies as a worker: for a certain period of time a person performs
services for and under the direction of another person in return for which he receives remuneration.
- A) Services performed for and under the direction of another:
o Asscher – a director of a company would not be a worker as his activity is not carried out in the context of a
relationship of subordination.
- B) Remuneration for services performed:
o Steymann – meeting of material needs constituted renumeration;
o Bettray – as the work was a means of rehabilitation, he was not a worker under Article 45.
o Academic: Spaventa questions whether the difference in treatment was due to an additional ‘qualitative’
dimension, ‘so that less ‘attractive’ union citizens might enjoy, for that reason only, fewer rights than others’
o Academic: O’Brien contends that the court ‘circumvented its own reasoning’ because an ex drug addict is a
‘less attractive claimant’ than someone in a religious organisation.
- C) Activities genuine and effective
o Raulin – the work undertaken must not be ‘marginal and ancillary’
o Academic: O’Brien contends that this test is ‘disability blind’ as there is no recognition that what work is
genuine and effective may differ between different groups of people, and thus it means that those in
different circumstances are frequently inappropriately subjected to the same test.
o Trojani – the national court must ascertain whether the activities are capable of being regarded as forming
part of a national labour market. It was left for national courts to decide whether the work is genuine and
effective.
o Part time workers
Levin – part time workers can qualify even if wages fall below national subsistence level.
Kempf – part time workers can qualify even if Cl must supplement their income from public/private
funds.
Raulin – part time workers can qualify even if the number of hours worked is incredibly small.
o Academic: Although it looks like the court have really broadened the definition of workers here, O’Brien
comments that MS exploit this at administrative level, and they are not applying the rules as the CJEU is. For
instance, she reports that the UK have a minimum wage per week of £150, and so people who earn less than
this, whilst are technically workers, do not fall within the scope of the definition of EU migrant worker.
