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FREE MOVEMENT OF
WORKERS
ARTICLE 45 OF THE TFEU guarantees the right of free movement of workers:
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

Definition of a Worker
The European Court of Justice (ECJ) has now and then insisted that the definition of
a worker is a matter of EU law rather than National law.
In HOEKSTRA, the ECJ position on workers is that:
any person who pursues employment activities which are effective and
genuine to the exclusion of activities on such a small scale as to be
regarded as purely marginal and ancillary is treated as a worker
The ECJ in LAWRIE-BLUM held that:
the essential feature of an employment relationship, however, is that
for a certain period of time a person performs services for and under
the direction of another person in return for which he receives
remuneration
For an economic activity to qualify as employment under ARTICLE 45, rather than
self-employment under ARTICLE 49 OF THE TFEU, there must be a relationship of
subordination. There is however, no single EU concept of a worker and it varies
according to the context it arises under EU law.
The practice must merely constitute as an economic activity as seen in Bosman.
Moreover, the irregular nature of remuneration is considered irrelevant as in R v
Ministry of Agriculture, Fisheries and Food.
The concept of remuneration was and hence of economic activity was pushed a bit
further in Steymann. It was considered that the fact, the work might be seen in
conventional terms as being unpaid did not mean that it was not effective economic
activity. Remuneration in kind is also acceptable.

Moreover, Article 45 would apply even where the work was done outside the
Community, so long as the legal relationship of employment was entered within the
Community: WALRAVE AND KOCH.
The ECJ further extended this ruling in BOUKHALFA, that the Article applied also to the
employment of a Member State national which was entered into and primarily
performed in a non-member country in which the national resided.
Article 45 are not only of vertical direct effect as in WALGRAVE AND KOCH and BOSMAN,
but are also horizontally applicable to the actions of individuals who do not have the
power to make rules regulating gainful employment as per ANGONESE CASE.
The wide interpretation shows that it is a fundamental freedom with great relevance

Part-Time Workers
All workers in the Member States have the right to pursue the activity of their
choice within the Community, irrespective of whether they are permanent, seasonal
or frontier workers or workers who pursue their activities for the purpose of
providing services.
Even part time employment also falls within the scope of workers who are seeking
to supplement his earnings below the subsistence level as per LEVIN and KEMPF.
However, their activities must satisfy the requirements in HOEKSTRA.

Purpose of Employment
The purpose for which the employment is undertaken is not relevant in determining
whether a person is a worker. All that is required is that the employment is genuine
and not marginal so as to benefit from ARTICLE 45. However, there are cases in which
some account has been taken of the purpose of the employment. This concept is
exemplified in BETTRAY.
The crucial factor is whether the work is capable of being regarded as forming part
of the normal labour market: TROJANI V CPAS.
An EU national who undertakes work for a temporary period purely as a means to
qualify for an educational course will not be entitled to all the same advantages as a
fully-fledged worker under EU law as per the ECJ in BROWN.
The ECJ reiterated the importance of objective factors such as hours of worked and
remuneration over other subjective factors such as motive and conduct in NINNIORASCHI.

Job Seekers
A job seeker also falls within the definition of a worker as per the ECJ in ANTONISSEN.
Member States retain the power to expel a job-seeker who does not have prospects
of finding work after a reasonable period of time. This concept was followed in
COMMISSION V BELGIUM and LEBON.

Article 45 of the TFEU: Discrimination

ARTICLE 18 OF THE TFEU, which contains the general prohibition on grounds of
nationality will be caught by ARTICLE 45.

Direct Discrimination
It entails different treatment both in law and in fact of foreigners in a Member State.
A good illustration of direct discrimination is seen in REYNERS CASE.
In COMMISSION V FRENCH REPUBLIC, the ECJ ruled that ARTICLE 45 was directly
applicable in the legal system of every Member State, and would render all
contrary national law inapplicable. Further, a state can be held in breach of ARTICLE
45, where the discrimination is practiced by any public body as in COMMISSION V ITALY.

Indirect Discrimination
Indirect Discrimination entails equal treatment in law but different treatment in fact
i.e. in practice, a rule or criteria that is neutral at first sight, but which
nevertheless has a detrimental effect or a detrimental impact primarily on
foreigners as seen in ALLURE AND COONAN.
ARTICLE 45 prohibits any condition of eligibility for a benefit which is more easily
satisfied by national than by a non-national worker.
The ECJ has relaxed the requirements for proof of indirect discrimination in OFLYNN.
In order for indirect discrimination to be established it was not necessary to prove
that a national measure in practice affected a higher proportion of foreign workers,
but merely that the measure was intrinsically liable to affect migrant workers more
than nationals.
Indirect Discrimination also includes benefits that are made conditional, in law or
fact, on residence, place of origin requirements, or place of education requirements
that can more easily be satisfied by nationals that non-nationals: UGLIOLA. This was
clearly illustrated in COMMISSION V BELGIUM.

A further form of indirect discrimination is the imposition of a language requirement

for certain posts, since it is likely that a far higher proportion of non-nationals than
nationals will be affected by it: COMMISSION V GREECE.
However, since such a requirement may well be legitimate, ARTICLE 3(1) OF
REGULATION 1612/68, allows for the imposition of conditions relating to linguistic
knowledge required by reason of the nature of the post to be filled.: GROENER.
Another form of indirect discrimination is the imposition of a double-burden regulatory
requirement, which does not recognize appropriate qualifications or certification already
received in the home state: COMMISSION V PORTUGAL .

Non-Discriminatory Measures
The ECJ has ruled that even non-discriminatory restrictions may breach the Treaty if
they constitute an excessive obstacle to freedom of movement: BOSMAN CASE.
A good illustration of the application of ARTICLE 45 to such restrictions can be seen in
COMMISSION V DENMARK and VAN LENT.
Neutral national rules could be regarded as material barriers to market access only
if it were established that they had actual effects on market actors similar to
exclusion from the market: GRAF.

Internal Situations
ARTICLE 45, does not prohibit discrimination in a so-called wholly internal situation.
This has the effect that national workers cannot claim rights in their own Member
State, which workers who are nationals of other Member States could claim there as
seen in SAUNDERS.
A worker will be able to use ARTICLE 45 against his or her own state where they are
discriminated against after returning to work in their own State having been
previously and resided in another Member State before: DE GROOT.

Article 45 of the TFEU: Justifications

Article 45(3) and (4) of the TFEU contain the Treaty justifications. These are further
supplemented by Directive 2004/38.

Article 45(3)
It contains exceptions to discriminatory provisions on grounds of public policy, public
security and public health Tsakouridis Case

Objective Justification
Justifications for indirect discrimination are broad, and not confined to the exception
set out in the Treaty or secondary legislation as seen in SCHUMACKER.
The ECJ close scrutinizes claims that attempt to justify the restrictions as evidenced
in TERHOEVE.

Article 45(4): The Public Service Exception

The ECJ has taken an expansive approach to the definition of a worker. Conversely,
its approach to the limiting clause in ARTICLE 45(4) has been restrictive.
The ECJ in COMMISSION V BELGIUM held that the aim of the Treaty provisions was to
permit Member States to reserve for nationals those posts, which would require a
specific bond of allegiance and mutuality of rights and duties between state and
employee. This statement proves to be two-fold:
1. they must involve participation in the exercise of power conferred by public
laws; and
2. they must entail duties designed to safeguard the general interests of the
State.
Both the requirements are cumulative rather than alternative. A post will benefit
from the derogation in ARTICLE 45(4) only if it involves both the exercise of power
conferred by public law and the safeguarding of the general interests of the state:
LAWRIE-BLUM
However, Community law does not prohibit a Member State from reserving for its
own nationals those posts within a career bracket which involve participation in the
exercise of powers conferred by public law or the safeguarding of the general
interests of the state.
SOTGIU CASE makes it clear that ARTICLE 45(4) cannot be used to justify discriminatory
conditions for employment within the public service.

Scope of Protection of Workers

ARTICLE 46 OF THE TFEU provides for the European Parliament and the Council to
adopt secondary legislation to bring about the freedoms set out in ARTICLE 45.

Regulation 492/11:

Substantive Rights of Workers

ARTICLE 45 confers positive substantive rights of freedom of movement and equality

of treatment on EU workers. These rights are to some extent fleshed out by
secondary legislation and in particular by REGULATION 492/11 (previously REGULATION
1612/68) which has been amended by DIRECTIVE 2004/38.

Social and Tax Advantages

Article 7(2) of Regulation 492/11 confers social and tax advantages on workers. The
ECJ read ARTICLE 7(2) in MICHEL S in a strict manner i.e. it only concerned benefits
connected with employment.
However, the ECJ has since then departed from this restrictive interpretation and
presented an expansive approach in CRITINI V SNCF that ARTICLE 7(2) be read as to
include all social and tax advantages whether or not attached to the contract of
employment.
It applied not just to workers but also to surviving family members of deceased
worker and that although ARTICLE 7 refers only to advantages for workers, it covers
any advantage to a family member, which provides an indirect advantage to the
worker: INZIRILLO. This was further applied in REINA.
EVEN limited the rights under ARTICLE 7(2) which a worker may claim. The ECJ ruled
that the advantages which this regulation extends to workers who are nationals of
other Member States are all those which, whether or not linked to the contract of
employment, are generally granted to national workers primarily because of their
objective status as workers. An illustration of this limitation can be seen in DE VOS
and UGLIOLA.

Educational Rights for Workers

Article 7(3) provides that EU workers shall:
by virtue of the same right and under the same conditions as national
workers, have access to training in vocational schools and retraining
centres
The Article has been held to confer equal rights of access for non-nationals workers
to all the advantages, grants and facilities available to nationals.
This provision was interpreted restrictively in LAIR, excluding universities from the
scope of vocational institutions. However, the ECJ in MEEUSEN held that workers

could invoke the social advantages provision of ARTICLE 7(2) to claim entitlement to
any advantage available to improve their professional qualifications and social
advancement, such as a maintenance grant in an educational institution not
covered by ARTICLE 7(3).
However, in LAIR it was held that this interpretation is subject to the requirement
that there must be a link between the previous work and the studies in question.
This was reiterated in BROWN with the addition that the employment must not be
ancillary to the main purpose of pursuing a course of study.
The one exception that is permitted can be found under ARTICLE 7(3)(D) OF DIRECTIVE
2004/38, where a worker involuntarily unemployed was obliged by conditions on the
job market to undertake occupational retraining in another field of activity. Moreover,
under ARTICLE 35 OF DIRECTIVE 2004/38, Member States may refuse or withdraw rights
under the Directive in the case of abuse of rights or fraud.

Educational Rights for Children

ARTICLE 12, provides that:
the children of a national of a Member State, who is or has been
employed in the territory of another Member State, shall be admitted
to courses of general education, apprenticeship and vocational training
under the same conditions as the nationals of that State, if those
children reside in its territory.
This article was interpreted broadly by the ECJ in MICHEL S so as to benefit for
disabled nationals was included within ARTICLE 12 as access to education for children
of workers. This expansive reading was continued in CASAGRANDE to apply ARTICLE 12
in respect to any general measure intended to facilitate educational attendance.
Thus, ARTICLE 12 places the children of EU workers residing in a Member State in the
same position as the children of nationals of that state so far as education is
concerned.
The ECJ took a step further in broadening the scope of this article in GAAL by
conferring educational rights on children who were over 21 and non-dependent. And
then again in MORITZ, covering the childs right to educational assistance even
where the working parents have returned to their state of nationality.

Rights of Families of the Workers

Only workers and their immediate family covered by DIRECTIVE 2004/38, may avail
the social advantages found under ARTICLE 7 OF REGULATION 492/11.

This is evidenced by the ECJs Judgements in various cases: LEBON; REED; DIATTA;
SINGH; and BAUMBAST.

Directive 2004/38: Procedural Requirements

This Directive concerns the movement and residence of EU citizens and their
families, with family members defined in ARTICLES 2 AND 3 thereof.
The ECJ does not interpret the DIRECTIVE 2004/38 strictly as it aims to strengthen the
primary and individual right to move and reside freely within the Member States
that is conferred directly on Union citizens by the Treaty.
ARTICLE 6: allows all EU citizens and their families right of entry and residence for up
to three months without any conditions other than presentation of an ID card or
passport. It also recognises the temporary status of job-seeker.
ARTICLE 8: provides that workers and their families may be required to register with
the host state authorities, and upon presentation of a valid passport or ID card and
confirmation of employment (and, in the case of family members a document
attesting to the existence of the relevant family relationship, dependency) to
receive a certificate of registration as evidence of their underlying right of
residence.
ARTICLES 9 AND 10: family members who are not EU nationals are to be issued with a

residence card.
ARTICLE 4: requires Member States to grant citizens and their families the right to
leave their territory to go and work in other Member States simply on producing an
identity card or passport of at least five years validity. No visa requirement may be
imposed.
ARTICLE 5: sets down conditions for the right to enter another Member State i.e. all

that is required is a valid identity card or passport and a visa requirement is

impermissible, except for certain third country nationals. However, the visa must be
issued as soon as possible and free of charge as per ARTICLE 5(2).
The rights to reside and to work are not conditional upon initial satisfaction of the
formalities for which the Directive provides. The penalties imposed must be
proportionate and non-discriminatory. Penalties such as deportation, refusal of entry
or revocation of the right of residence constitutes as disproportionate for a failure to
fulfill administrative formalities.
Where the EU national or the family member does not have the requisite documents
or visas, the Member State shall give them every reasonable opportunity to obtain

the documents, to have them brought to them, or to prove their right of residence
by other means as per MRAX V BELGIUM.
The ECJ in METOCK clarified that the DIRECTIVE 2004/38S application is not conditional
on the family member of a Union citizen having previously resided in a Member
State.
The directive furthermore provides for nationals of non-member countries who are
family members of a Union citizen.

Job-Seekers and the Unemployed

ARTICLE 7(3): EU citizens who have ceased working, shall nevertheless retain the
status of worker where they are temporarily unable to work as a result of an illness
or accident; or where they are involuntarily unemployed after having been
employed for more than one year and having registered with the employment office
as job seekers.
In case of involuntary unemployment where a worker has embarked on a vocational
training may retain the status of a worker, but in cases where the worker has
voluntarily given up employment retention of this status is conditional upon the
training being related to the previous employment: RAULIN
Job-seekers do not enjoy the status of a worker in the full sense of the term,
although they enjoy a right of residence during the period they are seeking work,
and access to certain benefits which are specifically intended to facilitate access to
employment: COLLINS.
The ECJ is flexible in establishing the length of this period as in ANTONISSEN.
However, the right to remain in search of work must continue even after that period
so long as the person concerned provides evidence that he is continuing to seek
employment and that he has genuine chances of being engaged.

The Right of Permanent Residence

DIRECTIVE 2004/38 introduces the right of permanent residence for EU citizens and
their families, including non-nationals, who have resided lawfully for a continuous
period of five years in the host state.
ARTICLES 16-18: lays down the conditions under which EU citizens, including workers
and their families, may enjoy this right. ARTICLE 16(4), provides that the right of
permanent residence may be lost only through absences of more than two
consecutive years.

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ARTICLES 19-21:
regulates administrative formalities. A document certifying
permanent residence is to be issued as soon as possible to EU nationals who have
verified their duration of residence. Non-EU national family members who enjoy a
derivative right of permanent residence are to be given a permanent residence
card, which is to be automatically renewed after every ten years and the validity
will be not be affected by the absence of less than two consecutive years.
ARTICLES 22-26: govern conditions under which the right of residence, including the
right of permanent residence, is to be enjoyed. It is to cover the whole of the
territory, and includes the right of equal treatment with nationals of the host state
within the scope of the Treaty, subject to such exceptions as are provided for by the
Treaty or in secondary legislation.

Directive 2004/38: Public Policy, Security and Health

Restrictions
ARTICLES 2733 OF DIRECTIVE 2004/38 govern the restrictions on the right of entry
and residence, which Member States may impose on grounds of public policy,
security or health. An innovation of DIRECTIVE 2004/38 has been the introduction of
three levels of protection against expulsion on these grounds:
1. A general level of protection for all individuals covered by EU law
2. An enhanced level of protection for individuals who have already gained the
right of permanent residence on the territory of a Member State
3. A super enhanced level of protection for minors or those who have resided for
10 years in a host state.
There is a significant body of case law concerning the circumstances in which Member
States may expel EU nationals or their family members on public policy or security
grounds as exemplified in the following cases: VAN DUYN; ADOUI AND CORNUAILLE; and

RUTILI.
The substantive and procedural protection for individuals subject to an expulsion
order are now set out in ARTICLE 28 OF DIRECTIVE 2004/38.
ARTICLE 28(1): requires that before making an expulsion order the Member State
must take into consideration the period for which the individual has stayed the host
Member State, his age, state of health, family and economic situation, social and
cultural integration and the extent to his links with the country of origin.
ARTICLE 28(2): provides enhanced level of protection to EU citizens, stating that they
may only be expelled for serious grounds of public policy or public security.

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ARTICLE 28(3): provides for an even more stringent level of protection for a minor or
an EU citizen residing in the host State for more than ten years stipulating that they
can only be expelled on imperatives grounds of public security.
LAND BADEN CASE holds that the ECJs interpretation of ARTICLES 27 AND 28 OF THE
DIRECTIVE and the conditions must be satisfied for an expulsion to be lawful.
ARTICLE 29(1): governs the public health requirement by specifying that only
diseases with epidemic potential as defined by the relevant instruments of WTO,
and other infectious or contagious parasitic diseases subject to protection in the
host Member State will justify measures restricted freedom of movement.
ARTICLE 29(2): sets out a three-month period following arrival after which diseases
occurring cannot constitute grounds for expulsion.
ARTICLE 29(3): where there are serious indications that it is necessary Member States
may within three-months of the date of arrival, require persons entitled with a right
of residence to undergo a medical examination free of charge to certify that they
are not suffering from any disease.
ARTICLE 30: requires that the persons concerned must be notified of the decision in
such a way that they can comprehend its content and implications: ADOUI and
CORNUAILLE
ARTICLE 31: gives EU citizens the right for judicial review or appeal against the
adverse decision taken by Member States.
ARTICLE 32: provides that where someone has been validly excluded on public policy
or security grounds they may apply to have the exclusion order lifted after a
reasonable period, and no later than three years from the enforcement of the final
exclusion order, by arguing that there has been a material change in the
circumstances justifying their exclusion. States must decide on such application for
re-admission within six months, but the applicants have no right of entry to the
territory while the application is being considered.