Free Movement of Persons
Treaty
Article 45
Any discrimination based on nationality is prohibited
1. are provisions of the treaty involved?
2. Is the national measure that imposes limits on rights, caught by article 45?
3. Can this be justified by article 45 or by court-created justifications?
4. Is it a proportionate way to achieve your goal?
The primary means for securing this objective is negative harmonisation – see Art 45(2)
TFEU:
While Art 45(2) clearly prohibits discrimination against foreign workers, it will be seen
below that the scope of Art 45(2) stretches beyond discrimination. Note that self-employed
persons are also market actors but fall within the separate but parallel regime of Art 49
TFEU.
1
Needs to be a worker – on a personal scope
Hartmann 2007 – fell within personal scope of article 45
Despite this place of residence and nationality, did not matter him and his wife who lived in
Austria also – they could both get rights under article.
CJEU given broad scope for Union to apply this (in Trojani, work under the direction of
someone else).
Needs to be real and genuine activity
- Difference between worker and work seeker
Antonissen 1991 = MS are able to give rights for a reasonable period of time 6
months, unless person show he is continuing to seek employment and that he has a
genuine chance of being engaged.
- Difference between worker and self-employed is that with the latter there is lack of
subordination to be classified as a worker.
- Can extend to scope to private sector employment agencies. ITC 2007
- Part Time Worker (Levin) = still worker
- Work during training (Lawrie-Blum) = worker
- Short - Term worker (Bernini) = worker
- Doesn’t matter what your salary is (Kempf) or however payment is made (Steymann)
e.g. if they pay in kind, giving accommodation in return for work.
, Are you a worker even in a religious community?
CJEU - yes covered. Affiliated to a group with religion, perform essential tasks for the group
and they get something in return, this is enough to be within the scope of the treaty.
BUT
Working to help someone reintegrate into society = this does not work. Because the main
aim is not to offer your services to get something in return. Here, it is reintegration. Limit of
being a worker
Needs a cross border element about movement of people
(Hartmann case. German national worked in Germany but lived in Austria - court said yes
cross border activity)
Why have this treaty article?
Preventing people from travelling through discrimination impedes people travelling abilities,
they want to work and get better opportunities. Promotes free market access and the free
union aspect of the EU.
One benefit of having this right in the treaty is that it can be directly effective. E.g.,
Walgrave and Koch
Applies to family members of workers – Hartmann – wife of German worker resident in
Austria could claim child raising allowance.
2. Is the national measure that imposes limits on rights, caught by article 45?
There can be direct discrimination or indirect discrimination
Directly discriminative = Commission v France 1974
These cannot be justified except on the basis of article 45(3) TFEU – public health, public
policy or public security subject to principle of proportionality.
Indirectly Discriminative = Groener, language requirement
Cannot prevent market access by restricting people’s access to countries
Bosman – rules impeding market access are capable of having restrictive impact even if not
discriminatory.
Indirectly discriminatory and non-discriminatory measures can be justified on the basis of Art
45(3) TFEU justifications, as well as the open-ended public interest reasons
Treaty
Article 45
Any discrimination based on nationality is prohibited
1. are provisions of the treaty involved?
2. Is the national measure that imposes limits on rights, caught by article 45?
3. Can this be justified by article 45 or by court-created justifications?
4. Is it a proportionate way to achieve your goal?
The primary means for securing this objective is negative harmonisation – see Art 45(2)
TFEU:
While Art 45(2) clearly prohibits discrimination against foreign workers, it will be seen
below that the scope of Art 45(2) stretches beyond discrimination. Note that self-employed
persons are also market actors but fall within the separate but parallel regime of Art 49
TFEU.
1
Needs to be a worker – on a personal scope
Hartmann 2007 – fell within personal scope of article 45
Despite this place of residence and nationality, did not matter him and his wife who lived in
Austria also – they could both get rights under article.
CJEU given broad scope for Union to apply this (in Trojani, work under the direction of
someone else).
Needs to be real and genuine activity
- Difference between worker and work seeker
Antonissen 1991 = MS are able to give rights for a reasonable period of time 6
months, unless person show he is continuing to seek employment and that he has a
genuine chance of being engaged.
- Difference between worker and self-employed is that with the latter there is lack of
subordination to be classified as a worker.
- Can extend to scope to private sector employment agencies. ITC 2007
- Part Time Worker (Levin) = still worker
- Work during training (Lawrie-Blum) = worker
- Short - Term worker (Bernini) = worker
- Doesn’t matter what your salary is (Kempf) or however payment is made (Steymann)
e.g. if they pay in kind, giving accommodation in return for work.
, Are you a worker even in a religious community?
CJEU - yes covered. Affiliated to a group with religion, perform essential tasks for the group
and they get something in return, this is enough to be within the scope of the treaty.
BUT
Working to help someone reintegrate into society = this does not work. Because the main
aim is not to offer your services to get something in return. Here, it is reintegration. Limit of
being a worker
Needs a cross border element about movement of people
(Hartmann case. German national worked in Germany but lived in Austria - court said yes
cross border activity)
Why have this treaty article?
Preventing people from travelling through discrimination impedes people travelling abilities,
they want to work and get better opportunities. Promotes free market access and the free
union aspect of the EU.
One benefit of having this right in the treaty is that it can be directly effective. E.g.,
Walgrave and Koch
Applies to family members of workers – Hartmann – wife of German worker resident in
Austria could claim child raising allowance.
2. Is the national measure that imposes limits on rights, caught by article 45?
There can be direct discrimination or indirect discrimination
Directly discriminative = Commission v France 1974
These cannot be justified except on the basis of article 45(3) TFEU – public health, public
policy or public security subject to principle of proportionality.
Indirectly Discriminative = Groener, language requirement
Cannot prevent market access by restricting people’s access to countries
Bosman – rules impeding market access are capable of having restrictive impact even if not
discriminatory.
Indirectly discriminatory and non-discriminatory measures can be justified on the basis of Art
45(3) TFEU justifications, as well as the open-ended public interest reasons
