Free Movement of Economically Active Persons1. Legal FrameworkTreaty provisions

Free Movement of Economically Active Persons1. Legal FrameworkTreaty provisions

  • Art 45 TFEU – free movement of workers.

  • Arts 49–55 TFEU – freedom of establishment (self-employed).

  • Arts 56–62 TFEU – freedom to provide services.

  • Arts 20–21 TFEU – EU citizenship and general right to move and reside.

Secondary legislation

  • Directive 2004/38 (Citizenship Directive) – governs residence rights of EU citizens and family members.

  • Art 7 Directive 2004/38 – residence beyond 3 months requires:

    • worker or self-employed status, or

    • sufficient resources + health insurance.

These provisions collectively create the EU free movement regime for economically active persons.

EU Law CASELIST

2. Workers (Art 45 TFEU)Core rights

Art 45 guarantees:

  • free movement to accept employment

  • equal treatment in employment conditions

  • prohibition of nationality discrimination.

Who counts as a “worker”?

The CJEU interprets “worker” broadly to maximise mobility.

Lawrie-Blum test

Case 66/85 Lawrie-Blum

A worker is someone who:

  1. Performs services

  2. For and under the direction of another

  3. For remuneration

This is the core EU definition of worker.

Genuine and effective work

Case 53/81 Levin

  • Work must be “genuine and effective”, not purely marginal or ancillary.

  • Even part-time work can qualify.

  • Motivation (e.g. supplementing income) is irrelevant.

➡ Prevents Member States excluding low-paid or part-time workers.

Jobseekers

Case 292/89 Antonissen

Free movement also covers jobseekers.

Rules:

  • Right to move to another MS to seek work.

  • MS must allow reasonable time (normally 6 months).

  • Can be expelled if no genuine prospect of employment.

Worker status despite irregular circumstances

Joined Cases C-151/04 & C-152/04 Nadin

  • Even individuals with irregular employment situations may still be workers if their activity is real and effective.

➡ Reinforces the broad protective definition.

3. Self-Employed Persons

Self-employed persons benefit from:

  • Freedom of establishment (Art 49 TFEU)

  • Freedom to provide services (Art 56 TFEU)

(a) Freedom of EstablishmentDefinition

Case C-55/94 Gebhard

Establishment means:

participating on a stable and continuous basis in the economic life of another Member State.

Examples:

  • opening a business

  • setting up a professional practice

  • forming a branch.

Direct effect of Art 49

Case 2/74 Reyners

  • Art 49 has direct effect.

  • Member States cannot restrict establishment based on nationality requirements.

Professional recognition

Case 71/76 Thieffry

  • Where a person’s qualifications are recognised as equivalent, MS must allow access to the profession.

(b) Freedom to Provide Services (Art 56)Definition

Services are:

  • temporary economic activities

  • provided for remuneration

  • without establishing permanently.

Case C-215/01 Schnitzer

  • The temporary nature must be assessed by:

    • duration

    • regularity

    • periodicity

    • continuity.

➡ Even long services can still be temporary.

4. Mutual Recognition of Professional Qualifications

Free movement requires recognition of professional qualifications.

Case 340/89 Vlassopoulou

Member States must:

  1. Compare foreign qualifications with national requirements.

  2. Assess whether knowledge and skills are equivalent.

If not fully equivalent, MS must allow compensatory measures (e.g. exams).

Case C-234/97 Fernández de Bobadilla

  • Authorities must undertake substantive evaluation of qualifications.

  • Automatic rejection is unlawful.

Lawyers

Two directives govern legal professionals:

  • Directive 77/249 – temporary provision of legal services.

  • Directive 98/5 – establishment of lawyers in another MS.

Key distinction:

Establishment

Services

permanent practice

temporary legal work

5. Equal Treatment

Art 24 Directive 2004/38

EU citizens residing in another MS must receive:

equal treatment with nationals

in areas such as:

  • employment

  • working conditions

  • social advantages.

However, limitations exist for social assistance (especially for non-workers).

Quick Exam Structure (Problem Questions)

1⃣ Identify status

  • Worker (Art 45)

  • Self-employed (Art 49)

  • Service provider (Art 56)

2⃣ Apply definition

  • Lawrie-Blum (worker test)

  • Gebhard (establishment vs services)

3⃣ Check restrictions

  • nationality requirements

  • qualification barriers

  • residence conditions.

4⃣ Assess justification

  • public policy

  • public security

  • public health

  • proportionality.

✅ Key takeaway

EU law strongly protects economically active migrants, interpreting worker and economic activity broadly to facilitate labour mobility and economic integration across the internal market.