EU - Free Movement of Workers Information
Outline (for Law students)
The right to free movement of workers has many similarities with that of goods, services and establishment (such as using the access to the market test and using non-exhaustive imperative requirements) and having studied any of those you will already be familiar.
As always, in order to tackle this subject you must first understand and categorise the key issues, and then memorise the relevant sources (case law/legislation) that provide for their explanation.
- What constitutes a worker
- What rights they have
- Which test to use: the 'access to the market test'
Luckily, free movement of works is very simple and straightforward (unlike the free movement of goods!)
1. What Constitutes a Worker
The treaties do not actually offer a definition of what a worker is, so it has been up to the ECJ to do the honours. Using a broad and objectively assessed definition, the Court has ensured universal understanding of what a worker is according to all 28 EU Member States.
The simplest definition: anyone under the subordination of an employer.
The more useful definition: one who 'performs services for and under the direction of another person in return for which he receives remuneration' (Lawrie-Blum).
As well as satisfying the above definition, one must be engaged in a genuine and effective economic activity as outlined under Art.3 TEU.
Although that may seem very simple, there is much to discuss about the status of employment seekers.
- Even without searching for work, Citizens have a right to remain in a host state for three months.
- Thereafter, they still cannot be expelled if it is shown that there is a genuine chance of finding employment.
- Case: Antonissen
- Case: Commission v Belgium 
Families and Employment Seekers
Art.7(2) of Regulation 492/11 declares that workers shall enjoy the same social and tax advantages as national workers, including their families. Cases: Christini, Castelli.
1.1 Employment Seekers
The following line of case-law must be examined in order to understand how the EU's attitude to employment seekers has arose to what it is today.
In Collins it was established that social benefits related to negative work events (accidents, sickness, being rendered unemployed) are available to citizens from other Member States.
This was further expanded in Vatsouras: social benefits that function to provide access to the labour market must be regarded as social advantages and not merely social assistance, the importance of such a distinction being that social advantages fall under Art.45(2) and 7(2) of the TFEU and Regulation 492/11 respectively. This in turn affords migrant employment seekers the same social benefits as national employment seekers.
Link to the Labour Market
Although the Court has greatly broadened the scope of who gets which social benefits in the Member States it would not be safe to say that migrant workers get all of the benefits that nationals do because of the need for a link to the labour market.
Where there is clearly no advantage of a benefit to finding work the benefit is simply not given to the migrant workers.
For example, in Even, a French WWII veteran living in Belgium attempted to claim the same higher early retirement benefit that was given to Belgian nationals who had fought in the war. The Court held that there was no labour link and so this was not necessary for the free movement of workers.
Other Examples of Benefits Covered Under 'Social Advantage'
- Discretional child birth loan - Reina
- Pensions - Castelli
- Reduced fares on railways - Christini
- Social security payment to cover the cost of burial - O'Flynn
- The advantage doesn't even need to be financial - Reed
2. What Free Movement Rights do EU Citizens have?
Their rights have four main sources which overlap and repeat each other:
- Article 18 TFEU - makes the general statement that there shall be no discrimination on the grounds of nationality within the EU (unless provided with a proportional justification).
- Article 45 TFEU - makes the general statement that there will be no discrimination based on the grounds of nationality as regards employment, remuneration (payment) and 'other' work conditions.
- Art 24(1) CRD - states makes the general statement that there should be equal treatment.
- Regulation 492/11 - reiterates what Article 45 TFEU says but also adds specific actions that cannot be made contained within section 2.
2.1 Articles 45-48
- Prohibits direct and indirect discrimination.
- Does not only emanations of the state (see Fosters v British Gas) but also private parties (meaning it has both vertically and horizontal direct effect).
- The horizontal direct effect of Articles 45-48 was established in Bosman
2.2 Rights of Workers according to Regulation 492/11
- Free movement into and out of other Member States
- Entry and residence into the Member States for work
- Access to employment, including accepting offers that have been made (home states cannot prevent workers from leaving, and host states cannot prevent them from accepting an offer).
- Equal treatment whilst at work
- Terms and conditions of employment: no distinction can be made on the basis of nationality. This includes the allowance to gain trade union membership.
- It is Reg 492/11 that declares that any contractual terms which are discriminatory on the grounds of nationality are void (so reference the Regulation and not Art.45 for these situations).
- Member states are prohibited to enforce quotas.
- Direct and indirect discrimination is prohibited.
So what should I use as my reference in free movement of workers questions?
Although it seems like there may be many avenues, the way to back up your points in an essay answer should typically be as follows:
- If it is concerned with being allowed into the country on the grounds of nationality, Art.45 TFEU
- If it is concerned with specific treatment rights (such as not being allowed X or Y) then use Regulation 492/11.
- If it is a very sensitive subject to Member States, such as those to do with fiscal matters, then Art.18 TFEU will likely come into play, the justification for this being that it gives Member States more freedom (it is less invasive and therefore politically safe).
How to tell if a rule is contrary to EU law?
There are only two avenues for a rule to be contrary to EU law:
- It is discriminatory on the grounds of nationality (contrary to Art.45 TFEU, Reg.492/11, Art.18 TFEU)
- It is 'restrictive' or 'an obstacle to' the market' (the access to the market test). Case of authority: Bosman, confirmed in Lyyski.
The first is very simple, if the rule has any clause that specifies any difference in treatment then it will be contrary to EU law.
An important point to remember is that EU law does have a de minimis rule for indirectly discriminatory rule. This means that if a rule has a very indirect, or small discriminatory effect, and is applied equally in law (to both nationals and immigrants), it will not be contrary to EU law. The case of authority for this is Graf.
Specifically, the judgement in Graf held:
"Such an event is too uncertain and indirect a possibility for that legislation to be capable of being regarded as liable to hinder freedom of movement for workers."
Justifications - Discriminatory Measures
If the rule is discriminatory (directly or indirectly) then it can only be justified on the following three derogations:
- Public health
- Public policy
- Public security
Justifications - Non-Discriminatory Measures Restricting Access to the Market
As for these measures, as well as the three above derogations (public policy, health, security), a whole (non-exhaustive) list of justifications called 'imperative requirements' or 'overriding principles' have been made by the ECJ through case law.
These imperative requirements are shared with justifying restrictive measures concerning the free movement of services, goods, establishment too!
They include, but importantly are not limited to:
- Cultural policy
- Consumer protection
- Protection of human dignity (as in Omega)