ART 45 TFEU: FREE MOVEMENT OF WORKERS

  • Art 45 TFEU (ex art 39 EC): workers have right to move freely across EU to seek and take up employment in other MSs on same terms as their nationals.
  • Rationale: allowing workers to move from MSs of high unemployment to MSs where there is a need for labour. Principle of non-discrimination would entail selection on basis of merit.
    • In practice, however, workers prefer to stay at home, even if unemployed.
    • But note workers in newer MSs are keen to take advantage of free movement rights, especially cos of significant wage differentials. To address concerns, the newer Accession Treaties provided for transitional arrangements, allowing old MSs to decide whether to allow free movement of labour without restriction.
  • In Reg 1612/68 vs , EU adopted series of measures giving rights to workers and their families, to encourage movement.
  • CRD then reflected change of perspective. Workers were no longer seen as factors of production, but EU citizens with enforceable rights against host state.

Who is a worker?

  • No definition I Treaties, but ECJ requires an autonomous meaning based on objective criteria, for sake of uniformity.

Criterion

  • Where Union nationals are in a relationship of subordination, under the employer’s control.
    • Lawrie-Blum, 1986: essential feature of employment r/s is one performing services for and under direction of another, in return for remuneration.
    • It is for national court to determine if this relationship exists.
  • Need genuine and effective economic activity, under art 3 TEU and art 2 EC
    • Steymann, 1988: plumber worked for Bhagwan community, and community looked after his material needs/paid him pocket money. Held to be indirect quid pro quo for genuine and effective work, hence he was a worker.
    • Cf Bettray, 1989: paid activity by state as part of drug rehabilitation programme, tailored to indiv’s needs, was NOT genuine and effective economic activity.
    • Levin, 1982: part-time chambermaid earning less than subsistence wage was still worker, since it was still an effective means of improving indiv’s living conditions.

Broadening the category

  • Martinez Sala, 1998: extended it to those seeking work – job-seekers must be allowed at least 3 months to look for work in host state.
  • Confirmed by art 14(4)(b) CRD: Union citizen job seekers can’t be expelled as long as they can show evidence that they are continuing to seek employment and have genuine chance of being engaged.
  • Art 7(3) CRD: citizens who are no longer workers/self-employed will retain status in 4 situations:
    1. Temporary incapacitation through illness/accident
    2. Involuntarily unemployed after being employed for >1 year, and registered as job seeker
    3. Involuntarily unemployed after completing fixed term contract of <1 year, or within 1st 12 months of employment on non-fixed term contract, and registered as job seeker
    4. Embarking on vocational training (should be related to previous employment)
  • CRD basically confirms and extends ECJ case law