Problem 7
E-Lesson Free Movement of Persons Part II: Workers
The free movement of workers is codified in Article 45 TFEU. Article 45 TFEU is given
further substance by the Workers Regulation (Regulation 492/2011) and the CRD
(Directive 2004/38, the Citizenship Rights Directive, CRD). Article 45 TFEU and the
Workers Regulation give workers the right to move freely across the EU to seek and
take up employment in another Member State on the same terms as nationals. The
Workers Regulation sets out specific rights for workers and their families, outlaws
restrictions on the access of a worker to the labor market of the host State, and
confirms that the principle of equal treatment shall apply in an employment
relationship.
Article 45 TFEU prohibits direct discrimination, indirect discrimination, and non-
discriminatory restrictions.
Justifications to the free movement of workers
The possibilities for justifying violations of the free movement of workers depend on
the type of measure (direct discrimination, indirect discrimination, or non-
discriminatory restriction). Direct discrimination based on the nationality of the
worker can only be justified on the basis of explicit Treaty rules (= explicit
justifications). For the other types of violations, a Member State can
invoke either justification grounds explicitly mentioned in the Treaty or one of the
imperative requirements (so-called implied justification). Once a measure violating
the free movement of workers can validly rely on an explicit or implied justification
ground, all measures need to furthermore satisfy the proportionality test.
Directly discriminatory measures are measures that apply to persons because of their
nationality. For instance, legislation stating that foreign workers should be paid less
than native workers is on its face (obviously) directly discriminatory. The same goes
for a rule that specifies that a football team shall consist only of national players.
Indirectly discriminatory measures may be applicable when there is neutral legislation
at first glance, however, the effects of the legislation are to the detriment of workers
stemming from the other Member States. A second situation may be applicable when
the national laws that are indistinctly applicable can more easily be satisfied by
national workers than by migrant workers or where there is a risk that they may
operate to the particular detriment of migrant workers.
Non-discriminatory measures are measures that apply regardless of nationality and
are liable to hinder or make less attractive the exercise of the fundamental freedom in
question, for instance by obstructing access to the market of a host Member State to
an economically active EU citizen.
Justifications
Restrictions on the free movement of persons can be justified by the Treaty (explicit
justifications) on the basis of public interest. Article 45(3) TFEU explicitly allows for
limitations justified on grounds of public policy, public security, and public health.
E-Lesson Free Movement of Persons Part II: Workers
The free movement of workers is codified in Article 45 TFEU. Article 45 TFEU is given
further substance by the Workers Regulation (Regulation 492/2011) and the CRD
(Directive 2004/38, the Citizenship Rights Directive, CRD). Article 45 TFEU and the
Workers Regulation give workers the right to move freely across the EU to seek and
take up employment in another Member State on the same terms as nationals. The
Workers Regulation sets out specific rights for workers and their families, outlaws
restrictions on the access of a worker to the labor market of the host State, and
confirms that the principle of equal treatment shall apply in an employment
relationship.
Article 45 TFEU prohibits direct discrimination, indirect discrimination, and non-
discriminatory restrictions.
Justifications to the free movement of workers
The possibilities for justifying violations of the free movement of workers depend on
the type of measure (direct discrimination, indirect discrimination, or non-
discriminatory restriction). Direct discrimination based on the nationality of the
worker can only be justified on the basis of explicit Treaty rules (= explicit
justifications). For the other types of violations, a Member State can
invoke either justification grounds explicitly mentioned in the Treaty or one of the
imperative requirements (so-called implied justification). Once a measure violating
the free movement of workers can validly rely on an explicit or implied justification
ground, all measures need to furthermore satisfy the proportionality test.
Directly discriminatory measures are measures that apply to persons because of their
nationality. For instance, legislation stating that foreign workers should be paid less
than native workers is on its face (obviously) directly discriminatory. The same goes
for a rule that specifies that a football team shall consist only of national players.
Indirectly discriminatory measures may be applicable when there is neutral legislation
at first glance, however, the effects of the legislation are to the detriment of workers
stemming from the other Member States. A second situation may be applicable when
the national laws that are indistinctly applicable can more easily be satisfied by
national workers than by migrant workers or where there is a risk that they may
operate to the particular detriment of migrant workers.
Non-discriminatory measures are measures that apply regardless of nationality and
are liable to hinder or make less attractive the exercise of the fundamental freedom in
question, for instance by obstructing access to the market of a host Member State to
an economically active EU citizen.
Justifications
Restrictions on the free movement of persons can be justified by the Treaty (explicit
justifications) on the basis of public interest. Article 45(3) TFEU explicitly allows for
limitations justified on grounds of public policy, public security, and public health.
