WEEK 2
FREE MOVEMENT OF WORKERS AND PERSONS &
POSTING OF WORKERS
READING
Literature
● Barnard & Peers, Chapter 13: Free movement of natural persons Section 1, 2, 3.1,3.3,
3.4, 4, 5.1, 5.2, 5.3, 7, 8, 9; Chapter 20, Sections 3.2.1 and 3.2.2. (32 pages)
Legislation and cases
● Article 45 and 56 TFEU
● Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April
2011 on freedom of movement for workers within the Union (Article 7)
● Directive 96/71/EC of the European Parliament and of the Council of 16 December
1996 concerning the posting of workers in the framework of the provision of services
(Posting of Workers Directive)
● Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004
on the right of citizens of the Union and their family members to move and reside freely
within the territory of the Member States (articles 6-7, 14, 24). (Citizenship Directive also
mentioned as CRD in the Barnard & Peers)
● Case C-66/85 (Lawrie Blum)
● Case C-415/93 (Bosman)
● Case C-345/05 (Laval)
● Case C-158/07 (Förster)
Seminar questions
QUESTION 1
a) What is meant by the concept of a worker within the meaning of Article 45 TFEU?
What are the two main elements of the activity performed by the migrant worker?
In the case Lawrie Blum the Court has decided that the essential feature of an
employment relationship is that 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 (par. 17). The three requirements for the term worker are: person
performs services, for and under the direction of another person and for which he/she
receives remuneration.
The two main elements of the activity performed by the migrant worker are 1) a
service of economic value and 2) the activities must be genuine and effective that may
not be marginal (par. 18, 20 and 21 Lawrie Blum)
b) What protection is given to a worker by Article 45 TFEU?
- Abolition of any discrimination based on nationality between workers of the
member states as regards employment, remuneration and other conditions of
work and employment (art. 45(2));
- Accept offers of employment (art. 45(3));
- Move freely within the territory of member states for this purpose (art. 45(3));
- To stay in a member state for the purpose of employment in accordance with
the provisions governing the employment of nationals of that state laid down by
law, regulation or administrative action (art. 45(3));
- To remain in the territory of a member state after having been employed in that
state, subject to conditions which shall be embodied in regulations to be drawn
up by the Commission (art. 45(3)).
c) Can a worker rely on Article 45 TFEU against a private employer?
In the case Bosman, the Court decided: “Article 48 EC (now 45 TFEU) not only applies to
the action of public authorities but extends also to rules of any other nature aimed at
regulating gainful employment in a collective manner”. The Court has held that the
abolition as between Member States of obstacles to freedom of movement for persons
and to freedom to provide services would be compromised if the abolition of State
barriers could be neutralized by obstacles resulting from the exercise of their legal
autonomy by associations or organizations not governed by public law (par. 82 & 83).
So, in these paragraphs, the Court decided that art. 45 TFEU has direct horizontal
effect. A provision had direct effect if it is sufficiently clear and precisely stated,
unconditional and not dependent on any other legal provision and it must confer a
specific right upon which a citizen can base a claim (these requirements are decided by
the Court in the case Van Gend & Loos).
In par. 96 the Court also decided: Provisions which preclude or deter a national of a
Member State from leaving his country of origin in order to exercise his right to
freedom of movement therefore constitute an obstacle to that freedom even if they
apply without regard to the nationality of the workers concerned; article 45 TFEU
prohibits all obstacles.
So, a worker can rely on article 45 TFEU against a private employer.
FREE MOVEMENT OF WORKERS AND PERSONS &
POSTING OF WORKERS
READING
Literature
● Barnard & Peers, Chapter 13: Free movement of natural persons Section 1, 2, 3.1,3.3,
3.4, 4, 5.1, 5.2, 5.3, 7, 8, 9; Chapter 20, Sections 3.2.1 and 3.2.2. (32 pages)
Legislation and cases
● Article 45 and 56 TFEU
● Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April
2011 on freedom of movement for workers within the Union (Article 7)
● Directive 96/71/EC of the European Parliament and of the Council of 16 December
1996 concerning the posting of workers in the framework of the provision of services
(Posting of Workers Directive)
● Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004
on the right of citizens of the Union and their family members to move and reside freely
within the territory of the Member States (articles 6-7, 14, 24). (Citizenship Directive also
mentioned as CRD in the Barnard & Peers)
● Case C-66/85 (Lawrie Blum)
● Case C-415/93 (Bosman)
● Case C-345/05 (Laval)
● Case C-158/07 (Förster)
Seminar questions
QUESTION 1
a) What is meant by the concept of a worker within the meaning of Article 45 TFEU?
What are the two main elements of the activity performed by the migrant worker?
In the case Lawrie Blum the Court has decided that the essential feature of an
employment relationship is that 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 (par. 17). The three requirements for the term worker are: person
performs services, for and under the direction of another person and for which he/she
receives remuneration.
The two main elements of the activity performed by the migrant worker are 1) a
service of economic value and 2) the activities must be genuine and effective that may
not be marginal (par. 18, 20 and 21 Lawrie Blum)
b) What protection is given to a worker by Article 45 TFEU?
- Abolition of any discrimination based on nationality between workers of the
member states as regards employment, remuneration and other conditions of
work and employment (art. 45(2));
- Accept offers of employment (art. 45(3));
- Move freely within the territory of member states for this purpose (art. 45(3));
- To stay in a member state for the purpose of employment in accordance with
the provisions governing the employment of nationals of that state laid down by
law, regulation or administrative action (art. 45(3));
- To remain in the territory of a member state after having been employed in that
state, subject to conditions which shall be embodied in regulations to be drawn
up by the Commission (art. 45(3)).
c) Can a worker rely on Article 45 TFEU against a private employer?
In the case Bosman, the Court decided: “Article 48 EC (now 45 TFEU) not only applies to
the action of public authorities but extends also to rules of any other nature aimed at
regulating gainful employment in a collective manner”. The Court has held that the
abolition as between Member States of obstacles to freedom of movement for persons
and to freedom to provide services would be compromised if the abolition of State
barriers could be neutralized by obstacles resulting from the exercise of their legal
autonomy by associations or organizations not governed by public law (par. 82 & 83).
So, in these paragraphs, the Court decided that art. 45 TFEU has direct horizontal
effect. A provision had direct effect if it is sufficiently clear and precisely stated,
unconditional and not dependent on any other legal provision and it must confer a
specific right upon which a citizen can base a claim (these requirements are decided by
the Court in the case Van Gend & Loos).
In par. 96 the Court also decided: Provisions which preclude or deter a national of a
Member State from leaving his country of origin in order to exercise his right to
freedom of movement therefore constitute an obstacle to that freedom even if they
apply without regard to the nationality of the workers concerned; article 45 TFEU
prohibits all obstacles.
So, a worker can rely on article 45 TFEU against a private employer.
