Summary Notes on ALL Final Materials (modules 7-12) - EU Law

Bundle 7 – Free Movement of Persons Part 1
KC 1 – Introduction to free movement of persons & EU citizenship
 who can freely move and reside within the territory of the Union? Under what
conditions?

Important distinction between
 Economically active persons: workers, self-employed persons, service
providers  all people who are directly, actively contributing to the economy
 Economically inactive persons: unemployed persons, job-seekers, students,
pensioners, etc.  all people who do not directly contribute to the economy of
the state through the active work force

From market-oriented freedom to an EU citizenship right
 Internal market reasoning behind free movement rights:
- Economically active persons are privileged under EU law – in principle,
more rights, and fewer limits and conditions apply
- Idea: all factors of production (incl. persons and businesses) can move
freely within MS
 In the 1990s, a new concept is formed: “market citizenship” becomes “EU
citizenship”  question arises whether you still have to have that linked to
economic acitivity to move freely

Legal framework before EU citizenship




 right to equal treatment under art. 18 applies to everyone, no matter what category
they fall in

All have the right to move to another state, and the MS all have an obligation to make
sure that they have equal access to the labour market

Introduction of EU citizenship
 1992 Maastricht Treaty  introduction of EU citizenship
 Now:



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, EU citizens, regardless of their economic acitivity, can move and reside within
MSs, but they are subject to conditions and limitations  KC 2

Legal framework now




 art 18 and art 21 are residual rights, meaning that if a more specific right applies to
you, you don’t benefit from art. 21 but from 45 or 50
eg



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,KC 2 – Free movement of workers and the principle of non-discrimination
Free movement of workers
 Material scope
- When does a worker benefit from EU?
o Key here: is there a cross-border element? (more on this in the next
bundle)
- How do they benefit (which rights do they have)?
- Which obligations does it impose (on MS, employers etc.)?
 Personal scope
- Who is considered a “worker” in EU law?
- How do we distinguish between employed persons (workers) and self-
employed persons?




PROBLEM 1: Does Article 45 TFEU have direct effect?
 can it be enforced by national courts if an individual wants to rely on the rights
granted by art. 45?
 Vertical direct effect
- Case 41-74 Van Duyn (vertical direct effect of directives) – Court also
confirmed vertical direct effect of Article 45 TFEU
o Confers rights on individual, and imposes precise obligations on MS,
which requires no implementation and leaves them (MS) no
discretion when it comes to implementation
o Individuals must be able to enforce their rights when it comes to art.
45, and national courts must protect those rights
 Horizontal direct effect – can you also invoke it in an action between 2 private
parties?
- C-281/98 Angonese, paras 30-36:
o “Principle of non-discrimination … in Article [45] is drafted in general
terms and is not specifically addressed to the Member States.” 
not just public actors are not allowed to discriminate based on
nationality but this also applies to private actors


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, o Prohibition is designed to ensure that there is no discrimination on
the labour market  applies to public and private actors
- See also C-415/93 Bosman  court confirmed that article 45 has
horizontal direct effect
 Exception: Public Service
- Article 45(4) TFEU: “The provisions of this Article shall not apply to
employment in the public service” (eg civil servants)
- Meaning of “public service”
o Narrow interpretation  not just anyone employed by government,
but court required to examine the position
o Examine the responsibilities and tasks of the specific position before
you can say whether it is a public servant
o C-149/79 Commission v Belgium, para 7:
 Must be “Entrusted with the exercise of powers conferred by
public law and with responsibility for safeguarding the general
interests of the State..”
 Employers of national rail company were not seen as public
servants by the court  thus they cannot be exempted from
prohibition of discrimination based on nationality
o C-66/85 Lawrie-Blum, para 27: requires “a special relationship of
allegiance to the State on the part of persons occupying them and
reciprocity of rights and duties which from the foundation of the bond
of nationality”

PROBLEM 2: How do we test for a breach of Article 45 TFEU?
 Each of the four freedoms are governed by a similar logic
 General framework to approach the question whether there is a breach of EU
law:
1. Does the measure affect a fundamental freedom protected under EU law
(here: FM of workers)?
Is the measure discriminatory? (Article 45(2) TFEU)
2. If so, can the measure be justified?
3. If so, is the measure proportionate to the objectives pursued?
 very similar process to FM of goods

PROBLEM 3: What does DISCRIMINATION entail?
National rules of the host MS apply:
 national labour laws and regulations will apply to the worker, but EU law demands
that national law apply to same manner to both national and non-national workers
 Article 1(1) Workers Regulation (492/2011): any national of an EU MS shall
have the right to take up an activity as employed person within the territory of
another MS in accordance with the law governing the employment of the
nationals of that State  yes, national rules apply, but EU workers benefit
from right of equal treatment
 BUT: “with the same priority as national of that State” (Article 1(2))
 RIGHT TO EQUAL TREATMENT or RIGHT TO NON-DISCRIMINATION on
the basis of nationality (latter is negative description of this)
- Article 45(2) TFEU: discrimination on the basis of nationality is prohibited
when it comes to “employment, remuneration and other conditions of work
and employment”

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