Lecture Week 2
Free movement of workers and persons; posti ng
Free movement
- Of workers
o Art. 45 TFEU, Regulation 492/2011
o Free movement of services: posting of workers
Art. 56 TFEU, Directive 96/71
- Of persons
o Art. 21 TFEU (European citizenship)
o Directive 2004/38
Applicability of an instrument
- First analyze the facts and select the most specific instrument/rule, i.e. the law giving
the strongest rights and check whether it is applicable
- Is there a cross-border element?
o In an entirely national situation, you cannot apply the rules laid down in EU
law
o It does not mean that you have to cross the border, for example a person born
in the Netherlands but with the French nationality applies for a job in the
Netherlands and gets rejected because of his nationality
- Does the person fall under the personal scope?
- Does the benefit fall under the material scope?
- Are all elements of the rule concerned satisfied by the facts of the case?
Free movement of workers
Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on
nationality between workers of the Member States as regards employment, remuneration
and other conditions of work and employment.
- Article 45(2) TFEU provides a prohibition of discrimination on basis of nationality
3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
- Article 45(3) TFEU shows the justifications. These are the only justifications that can
be made.
4. The provisions of this Article shall not apply to employment in the public service.
- This is an exception, so it is different from the justifications in (3).
, - Article 45 entails:
o Realization of internal market
o Non-discriminatory treatment on the labor market. No competition in the
area of labor law.
- Article 45 does not apply if none of the relevant facts relates to Community law (i.e. it
does not apply if all facts are limited to one Member State -> so if there is no cross-
border situation)
- Who is a worker?
o The term worker has community meaning (Lawrie Blum judgment)
Cannot be found in the treaties; probably because the member states
would not come to an agreement on the meaning of ‘worker’. It was
left to the Court of Justice to decide what falls under the scope of
‘worker’. The Court uses a broad interpretation of the term ‘worker’. In
some countries the term ‘worker’ has a specific meaning.
o Three criteria:
Performing an economic activity
For wage
Under supervision of another person
It has to be genuine and real work of economic value, which is
not merely marginal and ancillary.
o Very few exceptions to the term worker -> only if it is
seen as marginal and ancillary it is not seen as worker
- Article 45 has direct effect
o This can be invoked by individuals
- Article 45 has horizontal effect
o Bosman case, par. 82/83/93
Article 45 can be invoked in relation with a private organization, not
only in relation with a state/government. The Court wanted to give this
provision maximal effect.
- Article 45 TFEU entails the prohibition of:
o Direct discrimination
o Indirect discrimination
o Obstacles to free movement
Direct discrimination
- Direct discrimination: distinction by means of a forbidden criterion, i.e. nationality
(‘foreigners need a work permit’)
- Direct discrimination is forbidden unless permitted by the instrument concerned:
o Art. 45(3) TFEU: objective justification is limited to public policy, public
security or public health
- Exception in art. 45(4) TFEU: for employment in the public service
o Court: this exception is to be interpreted strictly. It covers posts involving
direct or indirect participation in the exercise of powers conferred by public
law and duties designed to safeguard the general interests of the State or
public authorities.
Can be found in case Lawrie Blum, par. 27
Free movement of workers and persons; posti ng
Free movement
- Of workers
o Art. 45 TFEU, Regulation 492/2011
o Free movement of services: posting of workers
Art. 56 TFEU, Directive 96/71
- Of persons
o Art. 21 TFEU (European citizenship)
o Directive 2004/38
Applicability of an instrument
- First analyze the facts and select the most specific instrument/rule, i.e. the law giving
the strongest rights and check whether it is applicable
- Is there a cross-border element?
o In an entirely national situation, you cannot apply the rules laid down in EU
law
o It does not mean that you have to cross the border, for example a person born
in the Netherlands but with the French nationality applies for a job in the
Netherlands and gets rejected because of his nationality
- Does the person fall under the personal scope?
- Does the benefit fall under the material scope?
- Are all elements of the rule concerned satisfied by the facts of the case?
Free movement of workers
Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on
nationality between workers of the Member States as regards employment, remuneration
and other conditions of work and employment.
- Article 45(2) TFEU provides a prohibition of discrimination on basis of nationality
3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
- Article 45(3) TFEU shows the justifications. These are the only justifications that can
be made.
4. The provisions of this Article shall not apply to employment in the public service.
- This is an exception, so it is different from the justifications in (3).
, - Article 45 entails:
o Realization of internal market
o Non-discriminatory treatment on the labor market. No competition in the
area of labor law.
- Article 45 does not apply if none of the relevant facts relates to Community law (i.e. it
does not apply if all facts are limited to one Member State -> so if there is no cross-
border situation)
- Who is a worker?
o The term worker has community meaning (Lawrie Blum judgment)
Cannot be found in the treaties; probably because the member states
would not come to an agreement on the meaning of ‘worker’. It was
left to the Court of Justice to decide what falls under the scope of
‘worker’. The Court uses a broad interpretation of the term ‘worker’. In
some countries the term ‘worker’ has a specific meaning.
o Three criteria:
Performing an economic activity
For wage
Under supervision of another person
It has to be genuine and real work of economic value, which is
not merely marginal and ancillary.
o Very few exceptions to the term worker -> only if it is
seen as marginal and ancillary it is not seen as worker
- Article 45 has direct effect
o This can be invoked by individuals
- Article 45 has horizontal effect
o Bosman case, par. 82/83/93
Article 45 can be invoked in relation with a private organization, not
only in relation with a state/government. The Court wanted to give this
provision maximal effect.
- Article 45 TFEU entails the prohibition of:
o Direct discrimination
o Indirect discrimination
o Obstacles to free movement
Direct discrimination
- Direct discrimination: distinction by means of a forbidden criterion, i.e. nationality
(‘foreigners need a work permit’)
- Direct discrimination is forbidden unless permitted by the instrument concerned:
o Art. 45(3) TFEU: objective justification is limited to public policy, public
security or public health
- Exception in art. 45(4) TFEU: for employment in the public service
o Court: this exception is to be interpreted strictly. It covers posts involving
direct or indirect participation in the exercise of powers conferred by public
law and duties designed to safeguard the general interests of the State or
public authorities.
Can be found in case Lawrie Blum, par. 27
