European Union Law Bundle 7-12
Week 7
Free Movement of Persons I
Economically Active Citizens
The free movement of persons is one of the fundamental freedoms guaranteed under EU Law. It allows union citizens to
move, reside, and work freely across Member States. This freedom is not absolute and depends on the status of the
person (economically active vs. inactive and the condition they fulfill under EU Law
Key Distinctions: Economically Active vs Economically Inactive Person
Economically Active Persons
These individuals contribute to host Member State’s economy through work or business and enjoy the broadest rights
under EU Law
Workers
Defined under article 45 TFEU and interpreted broadly by the CJEU
Includes part-time workers
Self-employed persons
Protected under article 49 TFEU
Includes freedom to establish a business or provide services independently
Service providers and recipients
Covered under articles 56-62 TFEU
Includes professionals offering cross-border services (e.g. doctors, consultants) or recipients (e.g. tourists,
patients, students using services)
Economically Inactive Persons
These individuals are not currently working or self-employed. Their rights are more limited and subject to stricter
conditions. Residual rights under citizenship provisions apply
Job-seeker
Have some rights under article 45 TFEU (e.g. a reasonable period to search for work)
But can be excluded from certain benefits (e.g. social assistance)
Students
Covered under Directive 2004/38
European Union Law Bundle 7-12 1
, Must have sufficient reasources and health insurance to avoid becoming a burden on the host state
Retired persons and others
Also covered by Directive
Must show they have sufficient means and health coverage
From Market-Oriented Freedom to an EU Citizenship Right
The original rationale behind the free movement of persons in EU law was economic. Rooted in internal market logic,
the EU primarily granted rights to economically active persons (workers, the self-employed, and service providers) to
enable the smooth functioning of the common market.
This marked a shift from "market citizenship" — where rights were tied to economic activity — to a broader status-
based citizenship.
EU Citizenship was formally introduced in the Treaty of Maastricht (1992).
It grants rights to all nationals of Member States, including:
The right to move and reside freely across the EU (Article 21 TFEU)
Political rights (e.g. voting in municipal and European Parliament elections)
Diplomatic protection and access to EU institutions
This transition reflected a broader vision of integration: not just economic, but also social and political, aiming to foster
a European identity.
Primary Law
Workers → Article 45 TFEU
Self-employed → Article 49 TFEU
General citizenship rights:
Articles 18 and 20–25 TFEU
Article 21 TFEU: Establishes the right to move and reside freely as a core right of Union citizenship
Secondary Law
Employed persons:
Regulation 492/2011 – Implements and details worker mobility rights
All EU citizens (especially non-economically active):
Directive 2004/38/EC – The Citizenship Directive
Governs entry, residence, and equal treatment
Applies to both economically active and inactive citizens under defined conditions
Free Movement of Workers - article 45 TFEU
European Union Law Bundle 7-12 2
, Legal Basis
Main Right
Freedom of movement should be secured with the Union
Prohibition of discrimination based on nationality in:
Employment access
Remuneration
Working conditions
Positive rights conferred to EU workers include:
To accept offers of employment (art 45(3)(a))
To move freely within the Union for employmnet purposes (art 45(3)(b))
To reside in another MS for work (art 45(3)(c))
To remain after employment ends (art 45(3)(d))
Limitations to the right
Rights may be limited only on the grounds of:
Public policy
Public security
Public health
Exclusion
Article 45 doesnt apply to employment in the public service, allowing MS some autonomy in the key sectors
(e.g. military, police, judiciary)
Material Scope - When and How Does EU Law apply?
When does a worker benefit?
A cross-border element is required
European Union Law Bundle 7-12 3
, The worker must move (or wish to move) from one MS to another
Purely internal situation (worker stays and works within one MS) usually fall outside of article 45
What Benefit does a worker receive?
A non-discirmination in recruitment, pay, working conditions
Access to social and tax advantages equal to nationals (see Regulation 492/2011)
Right to be accompanied by family members, who may also access education and certain benefits
Obligations on Others:
Member States must remove barriers to access to the labour market.
Employers must treat EU workers equally, regardless of nationality.
Public bodies must not impose unjustified restrictions or indirectly discriminatory rules.
Personal Scope - Who is a ‘worker’ in EU Law?
EU law provides an autonomous definition of ‘worker’, interpreted broadly by the CJEU
Who Qualifies as a Worker?
Someone who:
Performs services for and under the direction of another
Receives remuneration
The work is genuine and effective, not marginal or ancillary
Distinction from Self-Employed Persons:
Workers: perform activities under an employer’s control
Self-employed: operate independently (covered under Article 49 TFEU – freedom of establishment)
Direct Effect of art. 45 TFEU
A key question in the enforcement of free movement rights is whether article 45 TFEU can be invoked directly before
national courts. The answer is yes in general, bute there is a distinction between vertical and horizontal direct effect
Vertical Direct Effect
Confirmed in case 41/74 Van Duyn v Home Office
The court held that article 45 TFEU has vertical direct effect, meaning it can be relied upon by individuals against
the state or state bodies
Why?
The provision confers individual rights and imposes precise, unconditional obligations on Member States
No need for further implementation at the national level
European Union Law Bundle 7-12 4
Week 7
Free Movement of Persons I
Economically Active Citizens
The free movement of persons is one of the fundamental freedoms guaranteed under EU Law. It allows union citizens to
move, reside, and work freely across Member States. This freedom is not absolute and depends on the status of the
person (economically active vs. inactive and the condition they fulfill under EU Law
Key Distinctions: Economically Active vs Economically Inactive Person
Economically Active Persons
These individuals contribute to host Member State’s economy through work or business and enjoy the broadest rights
under EU Law
Workers
Defined under article 45 TFEU and interpreted broadly by the CJEU
Includes part-time workers
Self-employed persons
Protected under article 49 TFEU
Includes freedom to establish a business or provide services independently
Service providers and recipients
Covered under articles 56-62 TFEU
Includes professionals offering cross-border services (e.g. doctors, consultants) or recipients (e.g. tourists,
patients, students using services)
Economically Inactive Persons
These individuals are not currently working or self-employed. Their rights are more limited and subject to stricter
conditions. Residual rights under citizenship provisions apply
Job-seeker
Have some rights under article 45 TFEU (e.g. a reasonable period to search for work)
But can be excluded from certain benefits (e.g. social assistance)
Students
Covered under Directive 2004/38
European Union Law Bundle 7-12 1
, Must have sufficient reasources and health insurance to avoid becoming a burden on the host state
Retired persons and others
Also covered by Directive
Must show they have sufficient means and health coverage
From Market-Oriented Freedom to an EU Citizenship Right
The original rationale behind the free movement of persons in EU law was economic. Rooted in internal market logic,
the EU primarily granted rights to economically active persons (workers, the self-employed, and service providers) to
enable the smooth functioning of the common market.
This marked a shift from "market citizenship" — where rights were tied to economic activity — to a broader status-
based citizenship.
EU Citizenship was formally introduced in the Treaty of Maastricht (1992).
It grants rights to all nationals of Member States, including:
The right to move and reside freely across the EU (Article 21 TFEU)
Political rights (e.g. voting in municipal and European Parliament elections)
Diplomatic protection and access to EU institutions
This transition reflected a broader vision of integration: not just economic, but also social and political, aiming to foster
a European identity.
Primary Law
Workers → Article 45 TFEU
Self-employed → Article 49 TFEU
General citizenship rights:
Articles 18 and 20–25 TFEU
Article 21 TFEU: Establishes the right to move and reside freely as a core right of Union citizenship
Secondary Law
Employed persons:
Regulation 492/2011 – Implements and details worker mobility rights
All EU citizens (especially non-economically active):
Directive 2004/38/EC – The Citizenship Directive
Governs entry, residence, and equal treatment
Applies to both economically active and inactive citizens under defined conditions
Free Movement of Workers - article 45 TFEU
European Union Law Bundle 7-12 2
, Legal Basis
Main Right
Freedom of movement should be secured with the Union
Prohibition of discrimination based on nationality in:
Employment access
Remuneration
Working conditions
Positive rights conferred to EU workers include:
To accept offers of employment (art 45(3)(a))
To move freely within the Union for employmnet purposes (art 45(3)(b))
To reside in another MS for work (art 45(3)(c))
To remain after employment ends (art 45(3)(d))
Limitations to the right
Rights may be limited only on the grounds of:
Public policy
Public security
Public health
Exclusion
Article 45 doesnt apply to employment in the public service, allowing MS some autonomy in the key sectors
(e.g. military, police, judiciary)
Material Scope - When and How Does EU Law apply?
When does a worker benefit?
A cross-border element is required
European Union Law Bundle 7-12 3
, The worker must move (or wish to move) from one MS to another
Purely internal situation (worker stays and works within one MS) usually fall outside of article 45
What Benefit does a worker receive?
A non-discirmination in recruitment, pay, working conditions
Access to social and tax advantages equal to nationals (see Regulation 492/2011)
Right to be accompanied by family members, who may also access education and certain benefits
Obligations on Others:
Member States must remove barriers to access to the labour market.
Employers must treat EU workers equally, regardless of nationality.
Public bodies must not impose unjustified restrictions or indirectly discriminatory rules.
Personal Scope - Who is a ‘worker’ in EU Law?
EU law provides an autonomous definition of ‘worker’, interpreted broadly by the CJEU
Who Qualifies as a Worker?
Someone who:
Performs services for and under the direction of another
Receives remuneration
The work is genuine and effective, not marginal or ancillary
Distinction from Self-Employed Persons:
Workers: perform activities under an employer’s control
Self-employed: operate independently (covered under Article 49 TFEU – freedom of establishment)
Direct Effect of art. 45 TFEU
A key question in the enforcement of free movement rights is whether article 45 TFEU can be invoked directly before
national courts. The answer is yes in general, bute there is a distinction between vertical and horizontal direct effect
Vertical Direct Effect
Confirmed in case 41/74 Van Duyn v Home Office
The court held that article 45 TFEU has vertical direct effect, meaning it can be relied upon by individuals against
the state or state bodies
Why?
The provision confers individual rights and imposes precise, unconditional obligations on Member States
No need for further implementation at the national level
European Union Law Bundle 7-12 4
