Free movement of workers: Introduction
Rights relating to free movement of workers are generally, only directly provided to citizens of the EU. This is
demonstrated by Article 18 EC: Every citizen of the Union shall have the right to move and reside freely
within the territory of the member states…” Free movement of workers is governed by Article 45 TFEU. Any
national legislation that deters workers accessing movement rights are prohibited (Graf 2000) (Angonese
2000). Workers have the right to move from one Member State to another for the purposes of employment
(Article 45(1) TFEU, Bosman). Article 45(2) TFEU prohibits discrimination – whether direct or indirect –
against workers based on nationality. This provision may be used to challenge discriminatory national
legislation and/or discriminatory employment policies. Article 45(2) is horizontally effective and can be
enforced against private employers (Angonese).
Workers
The treaty does not define the term worker, so it has fallen to the Court of Justice. In earlier cases, it was
argued that the definition should come from national law but the court was robust and said no, it is a union
law concept that the Court of Justice shall define. They said it was necessary for issues of fragmentation.
Lawrie-Blum: “Performs services in return for remuneration”. It is the same in every state so states cannot
prevent access for migrants (Levin). It does not matter how long you have worked for, how much you are
paid (to an extent) or what your motivation is as long as it’s effective and the basic qualitative threshold has
been met. The court has been extremely generous in interpreting remuneration. It includes ‘payment in
kind’ (Steymann). However there are limits, it must be a market need (Bettray). Although the definition is
generous, it is not extreme. It won’t be allowed if work is marginal or ancillary. This is left to national courts
to deal with. State sponsored drug programme was held as insufficient in Bettray but in Torjani personal
socio-occupational reintegration programme satisfied the worker definition.
Article 7(2): Workers are entitled to the same ‘social and tax advantages’ as those enjoyed by home State
nationals. This covers benefits “whether or not… linked to a contract of employment”, which are “generally
granted to national workers primarily because of their objective status as workers or by virtue of the mere
fact of their residence on the national territory” (Even). Examples of ‘social advantages’ include:
Mutsch – the choice of language in a criminal trial;
O’Flynn – funeral expenses;
Ninni-Orasche – funding for education;
Hartmann – child-rearing allowance;
Hendrix – disabled workers’ allowance.
Article 3: Member States may not exclude foreign nationals from employment or subject them to conditions
not applicable to the State’s own nationals. However, it is permissible, if the ‘nature of the post’ requires it,
that workers have certain linguistic knowledge. This applies to teaching (Groener) and banking (Angonese).
Citizenship
If you do not satisfy the test of a worker you can fall back on the test of citizenship. Union citizenship is a
right to move and resign freely within the Union for whatever reason they like (i.e. retire). It is governed by
Article 21. It does not mean you no longer have protection as you still receive rights, but you lose the ability
to access social welfare benefits. The possible deprivation of ‘genuine enjoyment’ of EU citizenship as
introduced by Ruiz Zambrano, and refined by McCarthy. You should always try and make the individual a
worker before making them a citizen.
Work seekers
Rights relating to free movement of workers are generally, only directly provided to citizens of the EU. This is
demonstrated by Article 18 EC: Every citizen of the Union shall have the right to move and reside freely
within the territory of the member states…” Free movement of workers is governed by Article 45 TFEU. Any
national legislation that deters workers accessing movement rights are prohibited (Graf 2000) (Angonese
2000). Workers have the right to move from one Member State to another for the purposes of employment
(Article 45(1) TFEU, Bosman). Article 45(2) TFEU prohibits discrimination – whether direct or indirect –
against workers based on nationality. This provision may be used to challenge discriminatory national
legislation and/or discriminatory employment policies. Article 45(2) is horizontally effective and can be
enforced against private employers (Angonese).
Workers
The treaty does not define the term worker, so it has fallen to the Court of Justice. In earlier cases, it was
argued that the definition should come from national law but the court was robust and said no, it is a union
law concept that the Court of Justice shall define. They said it was necessary for issues of fragmentation.
Lawrie-Blum: “Performs services in return for remuneration”. It is the same in every state so states cannot
prevent access for migrants (Levin). It does not matter how long you have worked for, how much you are
paid (to an extent) or what your motivation is as long as it’s effective and the basic qualitative threshold has
been met. The court has been extremely generous in interpreting remuneration. It includes ‘payment in
kind’ (Steymann). However there are limits, it must be a market need (Bettray). Although the definition is
generous, it is not extreme. It won’t be allowed if work is marginal or ancillary. This is left to national courts
to deal with. State sponsored drug programme was held as insufficient in Bettray but in Torjani personal
socio-occupational reintegration programme satisfied the worker definition.
Article 7(2): Workers are entitled to the same ‘social and tax advantages’ as those enjoyed by home State
nationals. This covers benefits “whether or not… linked to a contract of employment”, which are “generally
granted to national workers primarily because of their objective status as workers or by virtue of the mere
fact of their residence on the national territory” (Even). Examples of ‘social advantages’ include:
Mutsch – the choice of language in a criminal trial;
O’Flynn – funeral expenses;
Ninni-Orasche – funding for education;
Hartmann – child-rearing allowance;
Hendrix – disabled workers’ allowance.
Article 3: Member States may not exclude foreign nationals from employment or subject them to conditions
not applicable to the State’s own nationals. However, it is permissible, if the ‘nature of the post’ requires it,
that workers have certain linguistic knowledge. This applies to teaching (Groener) and banking (Angonese).
Citizenship
If you do not satisfy the test of a worker you can fall back on the test of citizenship. Union citizenship is a
right to move and resign freely within the Union for whatever reason they like (i.e. retire). It is governed by
Article 21. It does not mean you no longer have protection as you still receive rights, but you lose the ability
to access social welfare benefits. The possible deprivation of ‘genuine enjoyment’ of EU citizenship as
introduced by Ruiz Zambrano, and refined by McCarthy. You should always try and make the individual a
worker before making them a citizen.
Work seekers
