Free Movement of Persons
Skeleton Structure
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STEP 1 – INTRODUCTION
• Article 45(1) creates the right of free movement of workers within the Community.
• Article 45(2) requires M/Ss to abolish any discrimination based on nationality between workers as
regards employment, remuneration and other conditions of work/employment.
• The ECJ has confirmed this provision is directly and horizontally applicable (Bosman; Angonese)
STEP 2 – IS THE INDIVIDUAL A “WORKER” WITHIN THE SCOPE OF ARTICLE 45?
• The key to the operation to this provision is the term “worker”. An individual will be regarded as a
worker within the meaning of Article 45 if (Lawrie Blum) they:
a) Perform services;
b) For another under control of that person; and
c) Receives remuneration;
• In addition, the “worker” must pursue an effective and genuine activity (Levin v Staatssecretaris van
Justitie). Examples of genuine and effective work include: (1) chamber maid (Levin); (2) footballer
(Bosman); (3) unpaid religious community worker (Steymann); (4) a pace settler in cycling (Walgrave
v Koch) and (5) part time music teacher supplemented by state income (Kempf).
• The meaning of the term “worker” has extended to include jobseekers (ex p Antonissen; Collins).
• [APPLY] – Applying these provisions to [insert names] in our present scenario, it is clear that they are
entitled to exercise the right of free movement. She is a [French/British etc] (and hence Community)
national travelling to another M/S for the purposes of taking up an employment position.
STEP 3 – RIGHTS OF ENTRY AND RESIDENCE – DIRECTIVE 2004/38
• Article 45 is the primary source of rights, but secondary legislation has augmented and clarified these
rights; namely Directive 2004/38.
(a) Rights of residence
• The following categories of people are covered by Article 2(2):
a) Union citizens
b) Family members:
▪ Spouse
▪ Registered partner
▪ Direct descendants who are under 21, or any age if they are dependents)
▪ Dependent direct relatives in the ascending line
Skeleton Structure
______________________________________________________________________________
STEP 1 – INTRODUCTION
• Article 45(1) creates the right of free movement of workers within the Community.
• Article 45(2) requires M/Ss to abolish any discrimination based on nationality between workers as
regards employment, remuneration and other conditions of work/employment.
• The ECJ has confirmed this provision is directly and horizontally applicable (Bosman; Angonese)
STEP 2 – IS THE INDIVIDUAL A “WORKER” WITHIN THE SCOPE OF ARTICLE 45?
• The key to the operation to this provision is the term “worker”. An individual will be regarded as a
worker within the meaning of Article 45 if (Lawrie Blum) they:
a) Perform services;
b) For another under control of that person; and
c) Receives remuneration;
• In addition, the “worker” must pursue an effective and genuine activity (Levin v Staatssecretaris van
Justitie). Examples of genuine and effective work include: (1) chamber maid (Levin); (2) footballer
(Bosman); (3) unpaid religious community worker (Steymann); (4) a pace settler in cycling (Walgrave
v Koch) and (5) part time music teacher supplemented by state income (Kempf).
• The meaning of the term “worker” has extended to include jobseekers (ex p Antonissen; Collins).
• [APPLY] – Applying these provisions to [insert names] in our present scenario, it is clear that they are
entitled to exercise the right of free movement. She is a [French/British etc] (and hence Community)
national travelling to another M/S for the purposes of taking up an employment position.
STEP 3 – RIGHTS OF ENTRY AND RESIDENCE – DIRECTIVE 2004/38
• Article 45 is the primary source of rights, but secondary legislation has augmented and clarified these
rights; namely Directive 2004/38.
(a) Rights of residence
• The following categories of people are covered by Article 2(2):
a) Union citizens
b) Family members:
▪ Spouse
▪ Registered partner
▪ Direct descendants who are under 21, or any age if they are dependents)
▪ Dependent direct relatives in the ascending line
