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CZ.1.07/2.2.00/15.0288

Free movement of Persons in the EU

Václav Stehlík

6/4/ and 13/4/2010

Structure of the free movement of persons

From the beginning:1) free movement of workers – art. 45 TFEU (ex 39

TEC)2) freedom of establishment – independent economic

activity – art. 49 TFEU (ex43 TEC)3) provision of services – art. 56 TFEU (ex art. 49 TEC)

90s:- retired persons. students- EU citizenship – art. 22 TFEU (ex 18 TEC)

Free movement of workers art. 45 TFEU

- art. 45 TFEU (ex 39 TEC) guarantees the free movement of workers

- specific expression of the general prohibition of discrimination in art. 18 TFEU (ex 12 TEC)

- prohibition of any discrimination based on nationality as regards:- employment, - remuneration- other conditions of work and employment

Free movement of workers comprises the right:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

art. 45 TFEU – direct effect

- vertical direct effect

- horizontal direct effect- C-15/93 Bosman

- C- 281/98 Roman Angonese

Who is protected by art. 45 TFEU?

- notion of „worker“ – EU concept (75/63 Hoekstra)

- defined by the ECJ

Worker

- must pursue activities that are effective and genuine

- activities of small scale, purely marginal and ancillary are excluded

- subordinated relations – employer – employee

(difference to the freedom of establishment and services)

- art. 45 covers only EU nationals

The concept of worker in the ECJ‘s case-law

- 53/81 Levin

- 139/85 Kempf

- 196/87 Steymann

- C-357/89 Raulin

The importance of the purpose of employment

- 344/87 Bettray

- C-456/02 Trojani

Job-seekers

- C-292/89 Antonissen

- extensive interpretation of art. 45 TFEU

- rights in art. 45 are not a closed list

C-138/02 Collins- right to apply to job-seekers allowance (comes from the right to equal treatment in access to employment)

Note:- worker versus job-seeker – difference in position

C-258/04 Ioannidis

Direct discrimination

- 167/73 Commission v. France (nationality of the crews of ships)

Indirect discrimination

- 15/69 Ugliola (military service)

- 152/73 Sotgiu (separation allowance)

- 378/87 Groener (language requirements)

- C-237/94 O´Flynn (grant to cover funeral expenses)

Non-discriminatory rules/Indistinctly applicable rules/Access to the labour market

- C-415/93 Bosman

- indistinctly applicable rules restricting the free movement of workers are prohibited- exceptions: public interest

Note.:counterpart judgements Cassis de Dijon (free movement of goods), Alpine Investments (free movement of services), Gebhard (freedom of establishment), Golden Share cases (free movement of capital)

Boundaries of art. 45 TFEU

- C-190/98 Graf

(compensation on termination of employment not available in vase of voluntary termination of employment)

Internal situations, reverse discrimination

- 175/78 Saunders

(criminal law – exclusion from part of own State territory)

Use against one‘s own state:

- after the return of the worker from another MS (social security, tax reliefs – C-385/00 De Groot)

Exceptions - direct and indirect discrimination

- only art. 45/3 TFEU:

- public policy

- public security (Van Duyn case)

- public health

Art. 45/4

- employment in the public service

- moreover indirect discrimination – further grounds for objective justification

- cohesion of the national tax system

(C-279/93 Schumacker, C-204/90 Bachmann, C-137/04 Rockler

- transfer rules in sport – time limits (C-176/96 Lehtonen)

Indistinctly applicable rules

- public interest -Bosman

Public service exception – art. 45/4 TEC

Why this exception was introduced?

Who decides on the content of this exception?

149/79 Commission v. Belgium I

- posts must involve direct or indirect participation in the exercise of powers conferred by public law

- posts must comprise duties designed to safeguard the general interests of the State or of public authorities

- 225/85 Commission v. Belgium II

- delimitation of professions covered by the exception

Sotgiu case- prohibition of any discrimination if a

foreigner was accepted to the post

Questions:

What does the free movement of persons consist of?

What are the effects of provisions on free movement of workers?

What is the concept of workers under art. 45 TFEU?

What kind of restrictions are prohibited?

What is the importance of Bosman case?

What are the exceptions to free movement of workers?