free movement of workers

introduction to few

• one of the four freedoms fundamental to the eu single market, along with free movement of goods, services and capital

• historically the primary mechanism for individual access to eu rights, allowing citizens to live and work in other member states

• developed through both pimrary and secondary legislation and heavily influenced b case law

• extends beyond workers to include their family members and job seekers, reinforcing social cohesion and mobility

• essential for economic integration enabling labor to move to areas of high demand and reducing labor shortages

• enhances competition and productivity by creating a diverse and competitive workforce e

• closely linked to eu citizenship and the broader right to free movement under article 21 tfeu

• strengthens social and cultural integration across member states by allowing indduals to live and work abroad without discrimination

legal framework: primary legislation: article 45 tfeu

• prohibits discrimination based on nationality in employment matters

• establishes rights such as :

  1. accepting job offers in another member state

  2. moving freely within the eu for employment purposes

  3. staying in a host state for employment

  4. remaining after employment ceases

• public service employment acceptation under article 45 (4) tfeu

• interpreted broadly to support bus economic objectives and deepen labour market integration

• underpins the principle of mutual recognition of employment rights and opportunities across member states

secondary legislation:

1. regulation 492/2011- governs equal access to employment and employment related benefits

2. directive 2004/38 (citizenship directive):expands rights to family members and enhances mobility protections

3. directive 2014/54: strengthens enforcement of free movement rights and mandates assistance bodies

4. directive 2005/36/ec: governs the mutual recognition of proffessional qualifications, ensuring workers with foreign qualifications are treated equally

scope of article 45 tfeu

Scope:

• applies to employment within the eu and in some cases outside, provided there is a sufficient link to the eu- boukhalfa

• has direct effect meaning indduals can enforce their rights in national courts- van send en loos

• covers both vertical direct effect (enforceable against the state) and horizontal direct effect (enforceable against private employers)- walrave and koch 1974 + agonise 200

• restrictions but be justified by overriding public interest objectives and must be proportionate

application of f article 45 tfeu

application:

1. bosman 1995- extended free movement rights to professional sports people

2. groener 1989: language requirements must be proportionate and necessary for the role

3. clean car auto service 1998: employers can also rely on article 45 to challenge discrimination

defining worker: Laurie blum 1986

• no definition in the treaties, defined through cjeu case law

• Laurie blum 1986 provides a key test for the definition of a worker:

  1. the indue must perform services for a certain period of time

  2. the work must be performed under the direction of another

  3. the worker must receive remuneration in return for their services

further developments of defining a worker:

1. levin 1982: work must be genuine and effective, not marginal or ancillary

2. kempf 1986- part time workers earning below subsistence levels qualify as workers

3. ratlin 1992- ‘on call’ workers may still qualify as workers if the work meets the Laurie blum test

4. steymann 1988-payement in kind (free accommodation) can qualify as remuneration

5. betray 1989: work in rehabilitation program did not qualify as genuine employment

6. meeusen 1999- spouses employed by their partners may qualify as workers

7. jany 2001: distinguishes between employment and self employment under article 49 tfeu

job seekers as workers

1. royer 1976- job seekers have the right to enter and reside in a member state to look for work

2. antonissen 1991-job seekers must find work within a reasonable period-approx 6 months

3. collins 2004/ioannidis 2005- limited access to social benefits for job seekers

4. directive 2004/38- extends worker status for up to one year post employment if the individual is actively seeking work

5. lemon 1987- job seekers can reside in another member state but do not have equal access to all social advantages

public service exception- article 45 (4)

• sotgui 1973: the cjeu determines what constitutes public service not national governments

• haralambidis 2014- public service roles must involve special allegiance to the state

• commission v Belgium 1980- reaserchers were not considered public servants

• likely included armed forces police senior civil servants judiciary

• not included teachers nurses general administrative roles

non discrimination in employment

• reyners 1974- equal treatment for workers is a fundamental principle

• defrenne 1976- article 45 prohibits sex discrimination

• angonesse 2000- prohibits indirect discrimination including language tests

• Scholz 1994: nationality based hiring bans violate eu law

recognition of qualifications

1. ordre des architects 2014- mutual recognition of qualifications

2. brouillard v Belgium 2015: unjustified language requirements are discriminatory

3. vlassopoulou 1991: authorities must compare foreign and national qualifications fairly

social benefits and workers rights

1. Martinez sala 1998: equal treatment principle extends to social benefits

2. grzelczyk 2001: students may access some benefits if they have worked

3. hoop 2002: residency based discrimination prohibited

4. collins 2004: job seekers have limited access to benefits

exception to free movement

1. public policy restrictions must be proportionate- van duyn

2. arbitrary morality based restriction prohibited- ado nd cornuaille

3. health restrictions must be strictly necessary - commission v Belgium 2005

impact Brexit

• UK nationals lost EU worker rights but may retain them under Citizens’ Rights Agreements.

• UK workers now subject to national immigration laws.

• Limited access to mutual recognition of qualifications.

What do we mean by a ‘public sector’ worker? How is this defined? Why is it significant?

public service exception:

-under article 45 4 tfeu there is public service exception to the free movement of workers. Public sector work involves the excersise of powers conferred by public law and involves duties which safeguard state interests

1. sotgui 1973: the cjue not member states defines what a ‘public service’ is

2. commission v Belgium 1980- researchers do not qualify as public servants

3. haralambidis 2014: public service must involve a special allegiance to the state which can be seen in jobs such as the armed forces or judiciary

-this is significant as member states may reserve certain jobs for nationals (eg police and the judiciary)

-however this must not be used to justify unnecessary nationality based discrimination

Where does responsibility for defining an EU worker lie and why?

defining a eu worker comes down to cjeu jurisprudence:

1. hoekstra 1964: definition of worker is a matter of eu law not national law

2. meeusen 1999: worker definition must be uniform across member states

3. raulin 1992: national laws cannot unilaterally restrict the concept of a worker

Why?

-prevents diverging interpretations across member states ensuring uniform application of worker rights across the eu for citizens no matter of their location

-prevents member states from narrowing the definition to exclude individuals

What is a worker under EU Law? Why is free movement of workers crucial to the EU?

under the Laurie Blum 1986 test, the definition of a worker must meet 3 requirements:

1. performs services for a certain period of time

2. under the direction of another

3. Reeves remuneration

Eu case law has further refined this definition:

• levin held that work must be genuine and effective not marginal

• kempf held low income part time work still qualifies as employement

• steymann held remuneration include payment of other kinds (accommodation not just salary)

• bettray social reintegration schemes however do not qualify as work

• raulin even on call work may establish worker status

Why is free movement important?

-fundamental for the functioning of the eus single market

-esnures efficient allocation of labour reducing unemployment and skill shortages

-stregnthens economic integration by allowing businesses access to a broader labor pool

-enhances social cohesion and cultural exchange

What legislation is relevant to workers? How does it help them?

1. primary legislation:

   • article 45 grants workers the right to move freely within the eu, prohibits nationality based discrimination and provides the right to stay post employment

   • article 18 is the general prohibition on discrimination on grounds of nationality

   • article 21 tfeu grants eu citizens the right to move and reside freely complementing worker rights

2. secondary leg:

   • regulate 492/2011- ensures equal treatment in employment, education and social advantages

   • directive 2004/38 (citizenship directive) extends rights to family members and governs residence rights

   • directive 2014/54- reinforces worker rights enforcement mechanisms

   • directive 2005/36/ec governs mutual recognition of professional qualifications

scenarios

(1) Is Aljaž a worker under EU law?

• Lawrie-Blum (1986): Meets all three criteria (work, subordination, remuneration).

• Steymann (1988): Payment in kind (rent-free flat and vouchers) counts as remuneration.

• Kempf (1986): Low wages do not negate worker status.

• Directive 2004/38: His wife may have derived residence rights.

Conclusion: Aljaž qualifies as a worker and his wife may benefit from family reunification rights.

---

(2) Is Ola a worker? Does she have a right to remain in France?

• Royer (1976): Job-seekers have movement rights.

• Antonissen (1991): Job-seekers must find work within a reasonable period (approx. 6 months).

• Directive 2004/38, Art. 7(3): Workers retain status for 6 months after losing a job.

Conclusion: Since Ola has been unemployed for 7 months, she may no longer qualify as a worker unless she has a permanent residence status.

---

(3) What status does Nadiya hold? Has she been discriminated against?

• Commission v. Belgium (1980): Public service must involve sovereign authority.

• Haralambidis (2014): State functions must require special allegiance.

• Angonese (2000): Prohibits nationality-based discrimination.

• Sotgiu (1973): Public service status is defined by EU law, not Member States.

Conclusion:

• The County Council may have unlawfully discriminated against Nadiya if her role does not require sovereign authority.

• She can challenge the rejection under Article 45 TFEU for indirect discrimination.