Free Movement of Workers
Lecture Aims
• To acquire a knowledge and understanding of the
substantive rights provided for by the Treaty and EC
secondary legislation in relation to the free movement
of workers
• To examine the case law and understand the
approach of the European Court of Justice in its
interpretation of these rights
Lecture outline
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Article 39
Who is a worker?
Anti-discrimination provisions
Rights of family members
Supplemented by lecture on free
movement of persons
Free Movement Provisions
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Article 39- workers
Article 43- freedom of establishment (self employed)
Article 49-freedom to provide services
Rights conferred by specific directives
– students
– retired persons
– persons of independent means
• Article 18-right of citizens to move freely
Article 39
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1. Freedom of movement of workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination
based on nationality between workers of the Member States as regard
employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public
policy, public security or public health:
– (a) to accept offers of employment actually made;
– (b) to move freely within the territory of Member States for this purpose;
– © 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 implementing
regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public
service.
Article 39
• Abolition of any discrimination on the grounds of
nationality (39 (2))(see also Article 12 EC)
• defines scope of the freedom (39 (3))
• includes expressly stated limitations on the freedom
(39 (3))
• limits scope of article in respect of work in the public
service (39 (4))
Principle of non-discrimination
• Article 12
• Within the scope of application of this Treaty, and
without prejudice to any special provisions contained
therein, any discrimination on grounds of nationality
shall be prohibited.
Secondary legislation
• Art 39 supplemented by Art 40
• allows Council to bring forward legislation to
secure the freedom
– Directive 64/221/EEC (derogations)
– Directive 68/360/EEC (entry formalities and residence
permits)
– Regulation 1612/68/EEC (equal treatment)
Secondary legislation
• Directive 2000/43/EC principle of equal treatment
irrespective of racial or ethnic origin (prohibits both
direct end indirect discrimination)
• Directive 2000/78/EC general framework for equal
treatment in employment and occupation
Article 39
• Directly effective
• Case 36/74 Walrave & Koch
– “prohibition of such discrimination does not only apply to the action
of public authorities…”
– “to limit the prohibitions in question to acts of a public authority
would risk creating inequality in the application”
• Case C-281/98 Angonese
– “the prohibition of discrimination in Article 39…must be regarded as
applying to private persons as well”
Nationality requirement
• Worker must be a national of one of the Member
States
• Confirmed in Regulation 1612/68/EEC
• nationality is tested by way of the nationality law of
the state concerned
• it is for each state to determine which persons qualify
for nationality
Scope of the term ‘worker’
• not defined in Treaty
• not to be defined by national law
• definition a matter of Community law -Case 75/63
Hoekstra-”if the definition were a matter…of national
law, it would…be possible for each Member State to
modify the meaning…and eliminate at will the
protection afforded by the Treaty.”
• Generously interpreted by ECJ
Workers
• Case 53/81 Levin
– includes part time employment providing it
involves effective and genuine activities.
– Does not include activities which are marginal
and ancillary
• “pursuit of effective and genuine activities to the exclusion of
activities on such a small scale as to be regarded as purely
marginal and ancillary.”
Workers
• Case 139/85 Kempf• irrelevant that the worker had to top up his
salary from public funds
• the test was whether the economic activity in
question was effective and genuine as
opposed to one that is marginal and ancillary
Workers
• Case 66/85 Lawrie-Blum
– “Objectively defined, a worker is a person who is
obliged to provide services for another in return for
monetary reward and who is subject to the
direction and control of the other person as
regards the way in which the work is to be done.”
Workers (Article 39)
• Case C-3/90 Bernini-employed for 10 weeks
as a trainee– a national court in assessing whether the services
are genuine and effective is entitled to examine all
the circumstances and ask whether the person
has completed a sufficient number of hours to
familiarize themselves with the work
Workers
• Case 196/87 Steymann-genuine and effective
albeit unconventional remuneration
• Case 344/87 Bettray-marginal and ancillary
• Case C-357/89 Raulin on call contract in
which R only worked for 60 hours over three
months
Work seekers
• No specific reference in Treaty
• ECJ gives purposive interpretation and holds that
Article 39 includes work seekers
• Case 48/75 Royer
• Case C-292 Antonissen-person must demonstrate
that he is continuing to seek employment and has
genuine chances of being engaged.
The worker’s family
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Worker’s family may also enter
See Regulation 1612/68-Article 10
which states that the following members of the workers family may accompany
the worker (irrespective of their nationality)
– the worker’s spouse
– his (and his spouse’s) descendants under the age of 21
– his (and his spouse’s) descendants over the age of 21 who are dependent
on him
– his (and his spouse’s) ascendants who are dependent on him
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In addition Art 10(2) also states that MS must facilitate the admission of any
member of the family not coming with the above definition if that family member
is dependent on the worker or lives under his roof in the country from where he
comes
The worker’s family
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Parasitic/derived rights
family members do not need to be EC nationals
Case C-413/99 Baumbast and R
In addition Art 10 (2) also states that MS must
facilitate the admission of any member of the family
not coming within the above definition if that family
member is dependent on the worker or lives under
his roof in the country from where he comes
The worker’s family
• The spouse
– Netherlands v Reed Case 59/85
• must be in a marital relationship
The worker’s family
• Case 267/83 Diatta
• Case 370/90 Singh ( R v Immigration
Appeal Tribunal and Singh, ex parte
Secretary of state for Home
Department)
The worker’s family
• Case C-413/99 Baumbast and R
– a divorced spouse is entitled to remain if
he/she is the primary carer of the worker’s
children
The worker’s family
• Case 316/85 Lebon
– dependency a factual question
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• Case C -413/99 Baumbast and R
– includes descendants of the worker and
descendants of the worker’s spouse
The worker’s family
• Art 10 of Reg.. 1612/68 qualified by 10 (3)
– the worker must have available for his family
housing considered as normal for national workers
in the region where he is employed
– however this provision must not give rise to
discrimination between national workers and
– Case 249/86 Commission v Germany
Rights of the worker
• right to enter and remain for the purposes of
employment
• right to remain after the employment has
finished
• right to be treated without discrimination on
grounds of nationality
Rights of Entry
• Dealt with in free movement of persons
lecture
• Subject to the limitations in Art 39 (3)-public
policy, public security, public health
• Substantiated by Directive 68/360/EEC
Prohibition against discrimination
• Art 39 (2)
• Such freedom of movement shall entail the abolition
of any discrimination based on nationality between
workers of the Member States as regard
employment, remuneration and other conditions of
work and employment.
– Developed by Regulation 1612/68/EEC
– Regulation 1612/68/EEC also confers specific rights on family
members
Prohibition against discrimination
• Treaty prohibits discrimination on grounds of
nationality in Articles 12 and 39 and also Regulation
1612/68
• Includes a prohibition against both direct and indirect
discrimination
• Direct-Case 167/73 Commission v France (French
Merchant Seamen)
Prohibition against discrimination
• Indirect- where a rule applies irrespective of
nationality but in practice it is much easier for
nationals of the host state to satisfy
– example-residency rules/qualification rules
– Case 152/73 Sotgiu
Prohibition against discrimination
– Case C-415/93 Bosman
• transfer rules laid down by Football (UEFA)
• even though the rules applied equally to nationals (in law
and in fact)
• such rules breached Art 39 if they impeded access to the
employment
Indirect discrimination
• In cases where there is indirect discrimination or
rules which impede access to the market the rules
may be objectively justified ( and must also be
proportionate)
– “Consequently the transfer rules constitute an obstacle to freedom
of movement for workers prohibited by Article 48 [now 39] of the
Treaty. It could only be otherwise of those rules pursued a
legitimate aim compatible with the Treaty and were justified by
pressing reasons of public interest. But even if that were so,
application of those rules would still have to be such as to ensure
achievement of the aim in question and not go beyond what is
necessary for that purpose.” Bosman, paragraph 104
Prohibition against discrimination
• Case C-190/98 Graf
– Rules applying without distinction to
national and non-national workers are
capable of constituting an obstacle to the
freedom of movement of workers where
they affect access of workers to the labour
market
Regulation 1612/68/EEC
• Title I-Arts 1-6 eligibility for employment
• Title II-Arts 7-9 equality of treatment within
employment
• Title III-Arts 10-12 rights of family members
Equal access to
employment
• Title I 1612/68
– Art 1-the right to take up employment with the same priority as nationals of
the ‘host’ state
– Art 2-right to apply/take up offers of employment without any discrimination
– Art 3-MS shall not limit applications or impose conditions not applicable to
own nationals
• Case 167/73 Commission v France (French Merchant Seamen)
• Case 29/84 Commission v Germany (Re nurses)
– Art 4-no quotas or restrictions on numbers
– Art 5-non nationals must be afforded same support in seeking work
Equal access to
employment
• Includes any conditions which make it more difficult
for foreign nationals to take up employment
• Case 33/88 Allúe
– national legislation where contracts for foreign
language teachers differed from those of national
Linguistic requirements
• Art 3 (1) Reg. 1612/68/EEC
• It is permissible to specify a linguistic requirement
where required by reason of the nature of the post to
be filled
• Case 379/87 Greoner-language requirement for
teachers was permissible
• Case C-281/98 Angonese
Equality of treatment
• Art 7 (1) 1612/68
• A worker who is a national of a Member State may
not, in the territory of another MS, be treated
differently from national workers by reason of his
nationality in respect of any conditions of employment
– Case 152/73 Sotgiu
Article 7(2) Social and tax
advantages
• The ‘guest’ worker “shall enjoy the same
social and tax advantages as national
workers”
• Case 207/78 Evan
– “all those advantages which, whether or not
[they] are linked to a contract of employment,
are generally granted to national workers,
primarily because of their objective status as
workers or by virtue of the mere fact of their
residence on the national territory.”
Article 7(2) Social and tax
advantages
• Case 32/75 Fiorini (née Christini) v SNCF
– “the equality of treatment…include[s] all social and
tax advantages, whether or not attached to the
contract of employment, such as reductions in
fares for large families”
• this right extends to family members
• F was the surviving widow of Italian worker who
had worked in France
Article 7(2) Social and tax
advantages
• Case 137/84 Mutsch-right to have court case
conducted in a particular language
• Case 65/81 Reina- discretionary childbirth loan
Article 7(2) Social and tax
advantages
• Case C-237/94 O’Flynn -funeral grant
• BUT...
• Case 316/85 Lebon-right to social and tax
advantages does not extend to work seekers
Vocational training under Article 7 (3)
• Art 7 (3) Worker shall have “the same right and under the same
conditions as national workers, have access to training in
vocational schools and retraining centres”
– Case 39/86 Lair “The concept of vocational school is a more limited
one and refers exclusively to institutions which provide only
instruction either alternating with or closely linked to an
occupational activity, particularly during apprenticeship”
– Case 24/86 Blaizot -university education not excluded provided
it led to a qualification required for particular trade/profession
or the skills needed for trade/profession
– narrow interpretation of vocational training under Art 7 (3)
Training for workers
• Art 7 (3) deals with access to training
• questions raised regarding financial
support for that training
• issue of maintenance grants- can these
be construed as a social and tax
advantage under Art 7 (2)?
Vocational training
– Case 39/86 Lair a person who was a worker but gave up
work to become a student could receive a grant (as a social
and tax advantage) providing there was a link between their
occupation and the studies (except where they had become
involuntarily unemployed)
– Case 197/86 Brown
Vocational training
– Case 197/86 Brown
• “it cannot be inferred ...that a national will be entitled to a grant for studies in
another MS by virtue of his status of a worker where it is established he acquired
that status exclusively as a result of his being accepted for admission to university
to undertake the studies in question. In such circumstances, the employment
relationship, which is the only basis for the rights deriving from Regulation
1612/68, is merely ancillary to the studies.“
• Although Brown was a worker he was not entitled to claim the grant as a social
and tax advantage because he had acquired the status of a worker as a result of
him being accepted at university
Vocational training
• Case C-184/99 Grzelczyk
• French nationals studying in Belgium
• applied for minimex (training subsistence allowance) in final
year of his studies (he had worked during first 3 years to support
himself)
• refused on grounds that he was not a Belgian national
• he was not a worker
• ECJ held that as a ‘citizen’ of the EU he was entitled to not be
discriminated against in respect of his application for the
minimex (See Free Movement of Persons lecture)
Further rights
• Trade Union activities- Art 8 Reg. 1612/68-equal
treatment as regards trade union membership
– Case C-213/90 ASTI
• Housing-Art 9 Reg. 1612/68 equal treatment with
regard to access to housing
– Case 305/87 Commission v Greece
Rights of family members
• Reg. 1612/68
– Article 11-right to take up employment employment (even if
they are not an EC national) - Case 131/85 Güll
Rights of family members
• Article 7 (2) Social and tax advantages to family
members
– not direct right
– must be of direct/indirect benefit to the worker
– thus family members only have derived/parasitic
rights
– Case 63/76 Inzirillo
– Case 32/75 Christini
Children of workers
• Article 12-”the children “shall be admitted to that State’s general
educational, apprenticeship and vocational training courses
under the same conditions as the nationals of that State...
• Member States shall encourage all efforts to enable such
children to attend these courses under the best possible
conditions”
– Case 9/74 Casagrande- ‘conditions’ includes all general measures
intended to facilitate educational attendance including maintenance
grant
– Case 42/83 Commission v Belgium
– Case 389/87 Echternach and Moritz
Children of workers
• Case C-413/99 Baumbast and R
• whilst children in the host state accessing
education their primary carer can remain with
them (even after a divorce from the worker)
• ECJ emphasised in the judgment the
importance of education for migrant children
Right to remain
• Art 39 EC Treaty refers to right to remain after having
been employed subject to conditions in implementing
legislation
• Art 18 EC Treaty (citizenship) . See Case C413/99
Baumbast
– “A citizen of the European Union who no longer enjoys aright
of residence as a migrant worker in the host Member State
can, as a citizen of the Union, enjoy there a right of
residence by direct application of Article 18 (1) EC Treaty”
– Regulation 1251/70-right to remain after retirementconditions laid down in directive
Summary
• Article 39 prohibits discrimination
on grounds of nationality
– includes direct and indirect discrimination
– indirect discrimination may be permitted if it
is objectively justified and proportionate
– Regulation 1612/68 provides ‘flesh’ to
Article 39 and also extends rights to the
worker’s family members
The public service
exception
• Art 39 (4)- The provisions of this Article shall not apply to employment in the
public service.
• Case 152/73 Sotgiu
–
“the exception will only be applicable if [the] person possesses a power of discretion
with regard to individuals or if his activity involves national interests-in particular those
which are concerned with the internal or external security of the state”-per Advocate
General Mayras
The public service
exception
• Case 149/79 Commission v Belgium
–
”posts which involve direct or indirect participation in the exercise of powers conferred
by public law and duties designed to safeguard the general interests of the State or of
other public authorities. Such posts in fact presume on the part of those occupying
them the existence of a special relationship of allegiance to the State and reciprocity of
rights and duties which form the foundation of the bond of nationality”
The public service
exception
• Essential factor is the nature of the work done not
simply because the work is in the public sector
• Art 39 (4) is narrowly interpreted
– Case 66/85 Lawrie Blum-teacher not within public
service exception
Internal Situations
• Art 39 only applies to Community workers-workers
exercising the freedom to work in another MS
• does not prohibit discrimination in wholly internal
situations (described as reverse discrimination)
– Case 175/78 Saunders
– Case C-18/95 Terhoeve
Conclusion
• Examined Article 39 and Regulation 1612/68
• Examined the rights of nationals to work in
another Member State and the right to be
accompanied by family members
• Further lecture on free movement of persons