Transcript Free movement of workers art. 45 TFEU

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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?