Free Movement of Workers

7T4
I
FREE MOVBMENT OF CAPITAL AND BCONOMIC AND MONETARY UNION
SNyonn, R'EMU Revisited: Are We Making a Constitution? What Constitution Are We Making',
in P Craig and G de Bfrca (eds), The Ettolution of EU Law (Oxford University Press, 1999) ch 12
and Differentiation: Metaphor for European Union', in P Craig and G de
Btrca
(eds), The Evolution of EU Law (Oxford University Press, 2nd edn,
-'EMu-Integration
Zrttott, C, IND SrLMeysR,
20lI)
ch 22
M,'The Constitutional Status of the European Central Bank' (2007) 44
CMLRev355.
FREE MOVEM:ENT OF WORKERS
I
i'
CENTRAL ISSUES
The free movement of persons is one of the four fundamental
freedoms of EU law, along with
the free movement of goods, services, and capital. This chapter deals
primarily with the free
movement of employed Persons (workers), the next chapter
t, ,t . free movement of the selfemployed and of companies (establishment and services), and
the following chapter with the
more recent category ofEuropean citizens.
*i
ii'
There are several central legal issues that arise
These include the scope
ofArticle
in the context of the free movement of workers.
45, the meaning accorded to 'worker', the rights of interrnediate
categories such as 'job-seeker', the kinds of restrictions which states
may justifiably impose on
iii'
iv'
workers and their families; and the rights which family members enjoy
under EU law.
There is an economic and a social dimension to free movement
ofworkers. In economic terms, the
rationale is to ensure what economists term the optimal allocation
of resources within the EU.r
Labour as a factor ofproduction may be valued more highly in some
areas than in others. If there
is an excess of supply over demand for labour in southern Italy (unemployment),
and an excess
of demand over supply in certain parts of Germany (insufficient
laboui supply),labour is worth
more in Germany than it is in ltaly. The value of labour within the
EU is maximized if workers
can move to the area where they are most valued. In social terms,
free movement of workers captures the idea that it should be regarded as natural within the Union
for people to work in other
Member States, and that this thereby fosters'an ever closer Union of
tne peopt.s of Europe,. The
policy of furthering the free movement of workers has therefore been
linked with a broader notion
of European solidarity, with the underlying aspiration of integration
of the peoples of Europe.
There can be tensions between the economic and the social dimensions
of free movement
ofwork-
ers' The image of EU workers as mobile units of production contributing
to the economic prosperity of Europe's single market contrasts with that of EU workers
as huriran beings, exercising a
personal right to live in another state and to enjoy equality of
treatment for themselves and their
families.
v'
vi'
I
There can also be tensions between the realization of free movement
and a Member state,s desire
to exercise control over entry into its country. This is especially so ih
relation to the entry of
non-EU citizens, who may be within the family of the worker who has
free movement rights.
The creation of the status of EU citizenship, dealt with in
Chapter 23, has influenced the development of the law on free movement ofworkers, affecting issues such as
the rights ofjob-seekers. The
ch
17.
716
I
ARTTCLE 45: DTRECT EFFECT
FREE MOVEMENT OF WORKERS
overlap between the two categories, workers and citizens, is reflected in the consolidation of the
secondarylegislation governing the free movement of persons in Directive 2004/38 on the rights
of movement and residence of EU citizens. This Directive includes workers and self-employed
persons and their families, as well as students and other kinds of non-economically active EU
nationals.
vii.
will be seen more fully in Chapter 23, a debate to be had as to whether citizenship
is the principal organizing concept in this area, which has overtaken more discrete categories of workers and the like. The very nature of this discourse can however only be understood
through comprehension of the development and meaning of the law relating to, inter alia;workers, and there are still areas where the economic status of the claimant matters, albeit less so than
previously.
There is, as
viii. The law relating
to free movement of workers demonstrates particularly clearly the interplay
between the Treaty provisions, EU legislation, and case law. When reading the materials in this
Chapter note how the body of law that has emerged is the result of the subtle interplay of these
sources
oflaw
2
ARTICLE 4'IDIRECT EFFECT
The basic provision is set out in
Article
45 TFEU, (ex
Article
39 EC), which provides as follows:
non-member country in which the national resided, at least as regards all aspects of the employment
relationship which were governed by the legislation of the employing Member state.3
The Court also ruled in Walrave andKocha and in Bosmans thatthe provisions of Article 45 are not
just of 'vertical' direct effect. The rules challenged in these cases were made by international sporting
associations, concerning cycling and football respectively, which were neither public nor state bodies.
However, the Court ruled that this did not exempt them from the application of Article 45:
Prohibition of such discrimination does not only apply to the action of public authorities but extends
likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and
the provision of services....
Since, moreover. working conditions in the various Member States are governed sometimes by
means of provisions laid down by law or regulations and sometimes by agreements and other acts concluded or adopted by private persons, to limit the prohibitions in question to acts of a public authority
would risk creating inequality in their application.6
the Angonese case subsequently went further and indicated that Article.45 is also horizontally
applicable to the actions of individuals who, unlike the associations in Walrave andBosman, do not
have the Power to make rules regulating gainful employment, such as a single employer who refuses
to employ someone on the ground of their nationality.T In this way, Angonese introduces a distinction between the law on free movement of workers and that governi,ng the free movement of goods,
since the ECJ has made clear that Article 34 applies only to state measures, and not to those.adopted
by private actors.6
\
for workers shall be secured within the
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality
between workers of the Member States as regards employment, remuneration and other conditions
1. Freedom of movement
Union.
Case C-281/98 Angonese v Cassa di Riparmio di Bolzano SpA
of work and employment.
3. lt shall entail the right, subject to limitations justified
[2ooo] EcR t-4139
on grounds of public policy, public security
or public health:
[Note Lisbon Treaty renumbering: Arts 48 and
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
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,
(c) to stay
regulation or administrative action;
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.
4. The provisions of this Article shall not apply to employment in the public service.
(d) to remain
The Court has repeatedly emphasized the central importance of the twin principles of freedom
of movement and non-discrimination on grounds of nationality. Article 45 is said to rePresent an
application, in the specific context of workers, of the general principle in Article 18 TFEU prohibiting
discrimination on grounds of nationality.
The ECJ in Walrave and Koch2 held that Article 45 would apply even where the work was done outside
the Community, so long as the legal relationship of employment was entered within the Community.
This was extended further in Boukhalfu, in which the Court ruled that the Article applied also to
the employment of a Member State national which was entered into and primarily performed in a
2
Case 36124 Walraye
I 717
anil Koch v Association lJnion Cycliste Internationale [1974] ECR 1405.
119 are now
Arts 45 and
157 TFEU
j
Angonese was an ltalian national whose mother tongue was German. He applied to take part in a competition for a post with the Cassa di Riparmio bank in Bolzano, ltaly. A condition for entry to the competition imposed by the bank was a certificate of bilingualism (in ltalian and German). The certificate
was to be issued by the public authorities in Bolzano after an examination held only in that province.
The national court found as a fact that Angonese was bilingual. and that non-residents of Bolzano could
face difficulties obtaining the certificate in good time. Since Angonese did not obtain the certificate the
bank refused to admit him to the competition for the post, and he argued that the requirement to have
the certificate was contrary to Article 48.
' Case C-214195 Boukhalfu
'5 Case36l74(n2).
I BRD [1996] ECR I-2253.
Case C-415/93 Ilnion Royale Betge iles Socidtds de Football Association and others v Bosman Ugg5] ECRI-4921,
[82]-[8a]; Case C-411/98 Ferlini v Centre Hospitalier de Luxembourg 12000) ECR I-8081, [50]; Case C-43BtOs
International Transport Workers' Federation and Finnish Seamen's (Jnion v Viking Line ABP and OU Viking Line Eesti
[2007] ECR I-10779; Case C-94107 Andrea Raccanelli v Max-Planck-Gesellschaft zur Fiirderung iler Wissenschaften eV
[2008] ECR r-se39.
6 Case 36 17 4 Walrave (n 2)
U7]-[19].
? Reg 1612168,
[1968] English Spec Ed Series I , p. 475, ArtT(4) supports this reasoning by stipulating that clauses in
individual contracts of employment will be void insofar as they discriminate on grounds of nationality.
'
ch
19.
7I8
I
FREE MOVEMENT OF WORKERS
ARTICLE 45: WORKER AND THE SCOPE OF PROTECTION
rHE ECJ
30. lt should be noted at the outset that the principle of non-discrimination set out in Article 48 is
drafted in general terms and is not specifically addressed to the Member Stales.
31 . Thus, the Court has held that the prohibition of discrimination based on nationality applies not
only to the actions of public authorities but also to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services lsee...A/alnve...l.
32. The Court has held that the abolition, as between Member States. of obstacles to freedom of
movement would be compromised if the abolition of State barriers could be neutralised by obstacles
resulting from the exercise of their legal autonomy by associations or organizations not governed by
public law lsee Walnve, paragraph 18...and. ..Bosman...paragraph 83).
33. Since working conditions in the different Member States are governed sometimes by provisions
laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by
private persons, limiting application of the prohibition of discrimination based on nationality to aets of
a public authority risks creating inequality in its application (see Walrave, paragrafh 19, and Bosman,
accordingly held . . . that the prohibition of discrimination applied equally to all agreements intended to
regulate paid labour collectively, as well as to contracts between individuals....
35. Such considerations must, a fortiori, be applicable to Article 48.. ., which lays down a fundamental freedom and whieh constitutes a specific application of the general prohibition of disc(mination
contained in Article 6 (now. . , Article 12 EC), In that respect, like Article 119 . . . it is designed to ensure
that there is no discrimination on the labour market.
36. Consequently, the prohibition of discrimination on grounds of nationality laid down in Article
48. . . must be regarded as applying to private persons as well.
7t9
specified many of the substantive rights and entitlements of workers and their families. The Directive
also replaced Regulation l25ll70 governing the conditions under which the worker and family may
remain in the territory of a Member State following the worker's retirement, permanent incapacity to
work, or death.
Apart from these changes, a major innovation of the 2004 Directive was to introduce the right of
Permanent residence for EU nationals and their families after five years of continuous legal residence
in another Member State. This was significant because a fundamental issue which was not immediately aPParent hitherto was whether'workers of the Member States' in Article 45(2) coveqed only
nationals of the Member States, or whether it included non-EU nationals resident and working within
the EU.Io The secondary legislation to implement Article 45, in particular Regulation 1512168, specifically restricted its application to workers who were nationals of the Member States, and that was the
interpretation adopted by the ECf.
(e) DEFINITION OF'WORKER': AN EU CONCEPT
paragraph 84).
34. The Court has also ruled that the fact that certain provisions of the Treaty are formally addressed
to the Member States does not prevent rights from being conferred at the same time on any individual
who has an interest in compliance with the obligations thus laid down (see. .. Defrenne.. . ), The Court
|
Despite the array of secondary legislation which existed, many of the basic terms were not defined
the legislation itself, but have been shaped by the EC|, including the meaning
of the core term 'worker'. The Court insisted from the outset that the definition of a 'worker' was a
matter for EU law, not national law.ll The issue arose early in the case of Hoeftstrc, in the context of the
eitherin the Treaty or in
interpretation of
a
council social security regulation, where the EC| declared that:
lf the definition of this term were a matter for the competence of national law, it would therefore be
possible for each Member State to modify the meaning of the concept of 'migrant worker' and to
eliminate at will the protection afforded by the Treaty to certain categories of person...Articles 4g to
51 [now 39-42] would therefore be deprived of all effect and the above-mentioned objectives of the
Treaty would be frustrated if the meaning of such a term could be unilaterally fixed and modified by
national law.
3
In requiring the term worker to be
ARTTCLE 45: WORKER AND THE SCOPE
OF PROTECTION
Article 46 TFEU provides for the EP and Council to adopt secondary legislation to bring about the
freedoms set out in Article 45. A range of directives and regulations were adopted under this provision to govern the conditions of entry, residence, and treatment of EU workers and their families.
Many of these were consolidated by Directive 2004138 on the free movement and residence of EU
citizens and their families.e
The 2004 Directive has replaced Directive 64122L, which governed the main derogations from the
rules on free movement, and has further tightened the extent to which Member States may derogate
from free movement requirements.It also replaced Directive 68l350,which regulated the formalities
and conditions ofentry and residence ofworkers and self-employed persons, and sought to reduce
and simplify further the bureaucratic hurdles which migrant workers and'mobile'EU citizens face.
The 2004 Directive amended Regulation 1612/68, which fleshed out the equal-treatment principle and
e Directive 2OO4l38tEC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of
the Union and their family members to move and reside freely within the territory of the Member States [2004] Of
Lts8l77.
a
Union concept, the Court was also claiming ultimate author-
ity to define its meaning and scope. In the words of the late Federico Mancini, formerly Advocate
General and |udge of the Court, the ECf conferred on itself a'hermeneutic monopoly'to counteract
possible unilateral restrictions of the application of the rules on freedom of movement by the different Member States.r2 Thus the Court has held that a spouse can be employed by the other spouse as a
worker,r3 and that Article 45 can be relied on by the employer,ra or by a relevant third party,rs rather
than only by the employee. The Court has, as we shall see, consistently construed the term broadly,
and has presented this freedom as part ofthe foundations ofthe EU.
To summarize the position: anyperson who pursues employment activities which are effective and
genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and
ancillary is treated as a worker.r6 For an economic activity to qualify as employment under Article 45,
to
F Burrows, Free Movement in European Community Law (Clarendon Press, 1987) 124; R Plender,'Competence,
European Community Law and Nationals of Non-Member States' (1990) 39 ICLe 599.
It Case 75163 Hoekstra v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten
11964l EcR l7Z lg4.
12
G Mancini,'The Free Movement of Workers in the Case-Law of the European Court of fustice'in D Curtin and D
O'Keefie (eds), Constitutional Adjudication in European Community and National Law (Butterworths, lgg2) 67.
It Case C-337l97 CPM Meeusen v Hoofddirectie van de Informaiie Beheer Groep
[l999lECR I-32S9.
tr Case C-350/96 Clean Car Autoserrtice GmbH v Lanileshauptmann von
Wien [1998] ECR I-2521.
It CaseC-208105 lTClnnovativeTechnologyCenterGmbHvBundesagenturfiirArbeit[2007]
ECRl-lgl.
16
Case C-337l97 Meeusen (n l3\.
720
I
FRBE MOVEMENT OF WORKERS
ARTICLE 45: WORKER AND THE SCOPE OF PROTECTION
rather than self-employment under Article 49 TFEU, there must be a relationship of subordination.rT
However, we shall also see that there is no single EU concept of worket and that it varies according to
the EU law context in which it arises.rE
(s) DEFINITION OF.WORKER': MINIMUM-INCOME
AND WORKING-TIME REQUIREMENTS
A number of cases have been concerned with the interplay between the economic aspect of free movement, as determined by the level of remuneration, and the social aspect underlying free-movement
policy. This issue arose in levin, in the context of part-time workers.re
'
Case 53/81 Levin v Staatssecretaris van
Justitie
[1982rECR 1035
The appellant was a British citizen married to a non-EC national and living in the Netherlands, but
whose application for a residence permit had been refused. She argued that she had sufficient income
for her own and her husband's maintenance, and that she had taken up part-time employment as a
chambermaid. The Staatssecretaris van Justitie argued that she was not an EC worker because her
employment did not provide sufficient means for her support, not being equal at least to the minimum
legal wage prevailing in the Netherlands. When the case was referred to the ECJ, the Court alluded to
its argument in Hoektn that Member States could not unilaterally restrict the scope and rqeaning of
the term worker.
THE ECJ
12. Such would, in particular, be the case if the enjoyment of the rights conferred by the principle
of freedom of movement for workers could be made subject to the criterion of what the legislation of
the host State declares to be a minimum wage, so that the field of application ratione personae of the
Community rules on this subject might vary from one Member State to another. The meaning and the
scope of the terms 'worker'and 'activity as an employed person' should thus be clarified in the light of
the principles of the legal order of the Community.
13. In this respect it must be stressed that these concepts define the field of application of one of the
fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.
14. In conformity with this view the recitals to Regulation No 1612/68 contain a general affirmation of the right of all workers in the Member States to pursue the activity of their choice within
the Community, irrespective of whether they are permanent, seasonal or frontier workers or workers
who pursue their activities for the purpose of providing services. Furthermore, although Article 4 of
Directive 68/360 grants the right of residence to workers upon the mere production of the document
on the basis of which they entered the territory and of a conf irmation of engagement f rom the employer
or a certificate of employment, it does not subject this right to any condition relating to the kind of
employment or to the amount of income derived from it.
Case C-268 199 Jany v Staatssec:retaris van Justitie[200l] EcR I-8615, [34]; Cases c-l5l-r52/04 Na din and Durre
[200s] EcR I-11203.
'8 Case C-256lOl Allonby v Actington anil Rossendale College [2004] ECR l-873, 163l; Case C-138/02 Collins v
S ecretary of State for Work and P e nsions [2004] ECR I-2703.
Sei aiso Cases C-22-23108 Vatsouras anil Koupatantze v Arbeitsgemeinschafr (ARGE) Nilrnberg 900 [2009] ECR
"
721
15. An interpretation which reflects the full scope of these concepts is also in conformity with the
oblectives of the Treaty which include, according to Articles 2 and 3, the abolition, as between Member
States, of obstacles to freedom of movement for persons, with the purpose inter atia of promorrng
throughout the Community a harmonious development of economic activities and a raising of the
standard of living. Since part-time employment, although it may provide an income lower than what
is considered to be the minimum required for subsistence, constitutes for a large number of persons
an effective means of improving their living conditions, the effectiveness of Community law would be
impaired and the achievement of the objectives of the Treaty would be jeopardized if the enjoyment of
rights conferred by the principle of freedom of movement for workers were reserved solely to persons
engaged in full-time employment and earning, as a result, a wage at least equivalent to the guaranteed
minimum wage in the sector under consideration.
17. lt should however be stated that whilst part-time employment is not excluded from the field of
application of the rules on freedom of movement for workers, those rules cover only the 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. lt follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of
the Treaty as a whole that those rules guarantee only the fr,ee movement of persons who pursue or are
desirous of pursuing a genuine economic activity.
There are a number of important aspects to this judgment. The ECI begins by reaffirming that the
rules on free movement of persons are fundamental to the Community, and must therefore be broadly
interpreted (paragraphs 13 and 14). The freedom to take up employment is important not only as a
means towards the creation of a single market for the benefit of the Member States'economies, but as
a right for the worker to raise her or his standard of living. This is so even if the worker does not reach
the minimum level of subsistence in a particular state (paragraph l5). Moreover, in response to the
suggestion that Levin may only have sought work in order to obtain a residence permit to remain in
the country, the Court ruled that the purpose or motive of the worker is immaterial, once he or she is
pursuing or wishing to pursue a genuine and effective economic activity (paragraph l7).
The ECJ has consistentlyadopted this kind of response to allegations of 'abuse of rights'in the area
of free movement, even while the Council insisted on the inclusion of a new'abuse of rights' exception
in Article 35 of the consolidating free movement Directive 2004138. The articulated requirement in
Levin that work be undertaken as a genuine economic activity was probably a response to Member
States' concerns that their social security schemes would become overburdened. This might be so as a
result of migrants entering from other countries, the systems of social benefits of which are less generous, who do not really intend to engage in effective work. Advocate General Slynn acknowledged
this concern. However, he noted the increasing dependence on part-time work, especially in times of
unemployment. He emphasized that the exclusion of part-time work from the protection of Article 45
would exclude not only women, the elderly, and disabled who, for personal reasons, might wish only
to work part time, but also women and men who would prefer to work full time but were obliged to
accePt part-time work. Levin thus clarified that part-time workers were covered by free movement,
and that it did not matter if workers chose to supplement their income from private sources.
InKempf,zo the issue was taken a step further. A German national who was living and working in
the Netherlands as a music teacher, giving approximately twelve lessons a week, was refused a residence permit. The Dutch and Danish governments argued that work providing an income below the
minimum means of subsistence in the host state could not be regarded as genuine and effective work
if the person doing the work claimed social assistance ftom public funds. The Court disagreed, ruling
',
r-4s8s, l28l-t2el.
|
'o
Case 139| 85 Kempl v Staats e cr etar i s v an I u stitie [1986] ECR 1741.
722
I
ARTICLE 45:WORKER AND THE SCOPE OF PROTECTION 1 723
FR'EE MOVEMENT OF WORKERS
that when a genuine part-time worker sought to supplement earnings below the subsistence level,
Case 196/87 Steymann v Staatsecretaris van Justitie
it was:
[1s88] ECR 6159
illrrelevant whether those supplementary means of subsistence are derived from property or from the
employment of a member of his family, as was the case in Levin, or whether, as in this instance, they
are obtained from financial assistance drawn from the public funds of the Member State in which he
resides.2l
Member States' concerns about possible abuse of the Treaty provisions by those who were simply
a Member State with better social provision in which to reside did not, said Advocate General
Slynn, justify the exclusion of part-time workers in Kempf's position from the scope of the Treaty.22
The state could address these concerns in the criteria it set for access to certain kinds ofsocial assistance, but it could not exclude the part-time employee from the status of 'worker'under EU law
A similarly inclusive reading of the term 'worker' is evident in many cases where the economic
dimension of the activity concerned was in question. Thus the Court has ruled that the practice of
sport falls within EU law in so far as it constitutes an economic activity, although the composition of
national teams could be a question of purely sporting and not of economic interest.23 It has also ruled
that fishermen who are paid a share ofthe proceeds ofsale oftheir catches can be considered to be
'workers', despite the irregular nature of their remuneration.2a
There have nonetheless been a steady flow ofcases concerning the concrete application ofcriteria
such as the need for'genuine and effective work'. In Lawrie-Blum,2s the Court was asked to rule on
the compatibility of German measures restricting access for non-nationals to the prepara\ory service
stage which was necessary for qualification as a secondary school teacher. Addressing the question
whether a trainee teacher at this stage would qualify as a 'worker' for the purposes of the relevant
Treaty provisions, the Court provided a more elaborate three-part definition of the term:
Steymann was a German national living in the Netherlands, where he had worked for a short time as
a plumber. He then joined the Bhagwan Community, a religious community which provided for the
material needs of its members. He participated in the life of the community by performing plumbing work, general household duties, and other commercial activity on the community's premises. His
application for a residence permit to pursue an activity as an employed person was refused and, on his
application for review of this, a reference was made to the Court.
seeking
That concept must be defined in accordance with objective criteria which distinguish the employment
relationship by reference to the rights and duties of the persons concerned. The essential feature of an
employment relationship, however, is that for a certain period of time a person performs services for
and under the direction of another person in retum for which he receives remunention.2G
rHE ECJ
9. lt must be observed in liminethat, in view of the objectives of the European Economic Community,
participation in a community based on religion or another form of philosophy falls within the field of
application of Community laW only in so far as it can be regarded as an economic activity within the
meaning of Article 2 of the Treaty.
11. As regards the activities in question in this case. it appears from the documents before the Court
that they consist of work carried out within and on behalf of the Bhagwan Community in connection
with the Bhagwan Community's commercial activities. lt appears that such work plays a relatively
important role in the way of life of the Bhagwan Community and that only in special circumstances can
the members of the community avoid taking part therein. In turn, the Bhagwan Community provides
for the material needs of its members, including pocket-money, irrespective of the nature and the
extent of the work which they do.
12. In a case such as the one before the national court it is impossible to rule out a prion the possibility that work carried out by members of the community in question constitutes an economic activity
within the meaning of Article 2 of the Treaty. In so far as the work, which aims to ensure a measure of
self-sufficiency for the Bhagwan Community, constitutes an essential part of participation in that community, the services which the latter provides to its members may be regarded as being an indirect
quid pro quofor their work.
The fact that the work might be seen in conventional terms as being unpaid did not mean that
The Court ruled that a trainee teacher qualified as a worker since, during the period ofpreparatory service, these three conditions would be fulfilled: she would petform services of economic value,
under the directionofthe school in question, andwould receive a measure ofremuneration in return.27
The fact that the pay was less than a full teacher's salary was immaterial, for the same reasons given in
Levin and Kempfi what mattered was the genuinely economic nature of the work plus remuneration,
not the amount of the pay. ln Steymann, the ECJ pushed the concept of remuneration, and hence of
economic activity,
"
"
"
Ibid
a
little further.
[14].
[1986]ECRl74l,1744.
Case 36174 Walraye (n 2); Case C-415193 Bosman (n 5); Case 13176 DonA v Mantero [1976] ECR 1333. Compare
Bosman U20l-[129J and Case C-438100 Deutscher Handballbund eV v Maros Kolpakl2003l ECR I-4135.
2{ Case 3187 RvMinistryof Agriculturc,FisheriesanilFood,expAgegateLtdll9S9l
ECR4459, [33]-[36].
'5 Casc 56/85 I aurie-Blum v Lanil Baden-Wiirttembergllg86] ECR 2121.
'6 Ibid [17], emphasis added.
'7 See also Case C-357l89 Raulin v Minister van Onder*ijs en Wetenschappen ll992l ECR I-1027; Case C-3l90
Bernini v Minister wn Onilerwijs en Wctcnschappen ll992l ECR I-1071; Case C-10/05 Mattern and Cikotic 12006)
ECR I-3145; Case C-109/04 Kra nemann v Land-Rheinland Westfalen [2005] ECR I-2 421; Qase C-228107 liirn Petersen
v Landesgeschiiftsstelle des Arbeitsmarktsemice Niederiisterreich [2008] ECR I-6989, [45]; Case C-94107 Andrea
Raccanelli (n5);CaseC-232109 Dita Danosa v LKB Lizings SIA, ll Nov 2010, [39].
it
was not effective economic activity. Steymann provided services of value to the religious community
which would otherwise have to be performed by someone else, and in return for which his material
needs were satisfied.
k,
DEFTNITTON OF'WORKER': PURPOSE OF THE EMPLOYMENT
The general rule is that the purpose for which the employment is undertaken will not be relevant in
determining whether a person is a worker. Provided that the employment is genuine and not marginal
it will benefit from Article 45. There are, however, cases where some account has been taken of the
purpose of the employment.
In Bettray the ECJ ruled on the application of Article 45 to someone who was undertaking thera-
peutic work as part of a drug-rehabilitation programme under Dutch social employment law.28 The
aim of the programme was to reintegrate people who were temporarily incapacitated into the workforce. Theywould be paid a certain amount, and treated, insofar as possible, in accordance with normal conditions of paid employment. The ECJ began by noting that a job was being carried out under
2t
Case 344187 Bettray
v Staatssecretaris van lustifie [1989] ECR
1621.
ヽＮふ 一 ﹃” 目Ｕ 〓 ０ く 日〓 口Ｚ Ｈ Ｏ ﹁ でく０ ” ︻ 目” ∽
〓 鷺 ︻二 ａ ８ ８ 、 ョ ８ 日 日 む ︻ お ヨ ロ ｏ﹃３ ８ ﹂ 乱 手 営 多 ２ ３
日 程 匡 ”
０ ど 乱 ∽ ８ 一 手 ２ ｏ〓
Ｃ Ｑ オ ︶
ヽ ●０一疇
﹁︻０一●０”〓 汁 ︶ ｏ﹁一すｏ 三ｏ Ｌ ６ ﹃ 選δ “一
口 ”ｒｏ員あ Ｌ くｏ∽ 芍︻９ お コ一一す０ ”ヽ﹁︻
村 ”一”
ｏ● ０﹁＞ ﹃Ｌ ｏ庁 ヽい 〓 ｏ■ ｏくｏＪ
″二 ● い
〓 訂 ヨ ｏ●一い
オ ¨“
暉コ一い
・ いもヽ ヽ ■ ｒｏｌ 一Ｆの ︻０”∽０口 ♂ ﹃暉費 庁 〓 ”π︻
一 目ｏ”８ げｏ ︻Ｌ ９ ヽ 口”一ｏ
口” 〓 ９ 升 ダぉ ∽∽”い
〓∽”ｏ口暉ｒ ８ ８ ∽ ”ｒｏ ”０ ︼象 ”日 す ０２ ”ｒｏ 暉︻ ｏＸ ｏＰ ｒｏ〓 ｏ寿
短
”
・
芍ｑ お ︻ヨ ●摯
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∞一ｍヨ ｏ一
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ΦＯωａ ΦＱ ω∽ ０つ Φ﹁一〇０二くΦ ωコＱ ＯΦコＣ一
っΦ
，
一〓 Ｏ
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一
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Φ つｏ一 ∽Φ一
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一０コヨ´∞ ００﹁汁０一
∽ ０﹁ 一 Φ■ ０００つｏ〓く 一〇 ＯΦ﹁
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Φ∽ 一
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くのＱ
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つ 一コΦ ヽ﹁
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コ０∽ ０﹁くく０﹁＾ ０∽∽０〇一
０一
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く ヽ０﹁一す０一 ｏＣ﹁ｏＯ∽Φ σく
，
一。
一
〇〇０一ＯＣ＾ ０一ＬΦ∽・
Ｏ Ｆ ”Ｌ く 一ｒ の ﹁暉 ︻﹁ ０ ∽ｏ ♂ ﹃ ●● ヽｏ■ ”澪 ”コ 一ｒ ｏ 三 Ｑ 升 〓 ”∽ ｏ︻“２ ２ 一ｏ 一ｒ ● ” ０ ︼が ヽ ８ ”∽８ Ｐ ヨ
”
澪 炒 ２ 一Ｆ ２ 一〓 ｏ 日 ュ ロ
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多
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∽
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さ 井 旨 澪
﹁
︺８
，
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”口 ∽いヽヽ，
”∽”Ｆ ０ ０”∽ｏ，
ミ ヽヽ、 ・︻ｏ∽暉 Ｆ，Ｏ、 い●，” ﹃Ｃｒ コ ¨ ”””一● ∽一
・
♂ ﹃６●
．
い ０一”﹃”￥ ロデ ｏ ｏ”∽ｏ ”∽ Ｏヽ ｏコ ”ｏ ６︻”Ｌ Ｏ”
塑Ｒご げ ００”“ ∽０ ０● ∽“ ﹃“口 ｍ 一ｒ ● ︻●ｏσいＦ ”く ｏ︵” “≦路 ︻︲”︻””目 ０● メお︻ない︶︻ｏｏ ζス︶暉︼魚
∽①の日 一０ げ０ ”口 ”
ヨ ﹁０■ ”●一 ﹁”二 ｏ﹁ 一ｒＯ 日 需 営 くげ ２ ヨ ´ ”●鮎 ︻ｏい
コ澪 ”﹃営 ざ 目 ｏ、 芍ｏｏ﹁〓 ロ
ロ一ｏ 一〓ｏ 〓 ９
一ｒ﹃ｏ“¨〓 ∽ｒｏ〓●３ ａ Ｏ員︼
い一口ｏい いいヽヽヽ ︻Ｃ〓口 ゴδ員■８︶σｏ
ｏ口”一
ｏく口”
∽” ０”︻”Ｏ﹁一Ｆい ﹁“︻”ｒｏ い
ヽ︻
”
ｏ一マ〓ｏ一，一〇 一ｒＯ
，
，
６”∽０ ０い∽〓ＯＦｏいのヽ ｏコ︼
０く口”●●”沖︼ 鮎ぃ
∽”げ一
ｏヽ ﹁ｏＯヽ︻
ｏ・一ｒ”
∽いｏｃｒ︼ＯＸｏ︻
“Ｏｏ日””口く ヽい
﹁︻
∽”げ︻
ｏ鮎 ﹁ｏＯ短︻
いい・
０日 げｏい
口¨
〓Ｏ Ｌ公︼∽“口ヽｏ﹃“Ｃ二 ２豪
Ｈ 早
ミ ｒ９ ８ お い 〓 Ｆのお ” ﹁﹃ｏ目ｏＦ 口””ざ 口注 〓 Ｒ 汀 ヽ ヨ ” ｏ︻ 〓 日 〓 ” お Ｆ 一ｏ ８ 一”
日
ヽ
ミ
ｏ● ﹁８ ”８ ョ 日 ０ ︻“●
・
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げЧ ”ｒω ∽”︼
く”Ｌ ｏ日 ヽｒ■口手 一 ｏ●０ ︼∽ｏ２ 日 の、 一〇 ヽお Ｌ 目”“け 口 ” 、、 ミヾ、Ｏｂ 一Ｆｏ ”︻Ｏｒ●ヽ 一Ｆ笙二 Ｆｏ ”ヽ﹁〓ｏヽコ一”
口 一ｒ”一
σ﹃ ”口 ”
ｏ●∽ｏ ｒ”ａ ｏ﹁﹁”﹃ｏ●Ｌく げのｏ，
一の ヽｏ﹃い
口 “口”げ︼
ｏ︵
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Ｏ、・０● ”ＯｏＯ“”一〇﹁〓”
∽ ヽ︻“¨ ”鮎ヽ”
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”口
“●らの︻コ０コヨ一
”︼ｏＯ”“”
０日
，
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ヽいい
Ｎ二・ ⊂ つＱΦ﹁一すΦ ﹁
Ｑ Φく０つ一 ０﹁
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ＮЧ 一
ζ一
〇
二
〇
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︵
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，
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く
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﹁″
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く ω∽一
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日 多 Φｏｇｏｎ 一
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つ００，
くΦ∽ざ σΦ舞ｓ 一
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ＮＮ・
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Ｄ バ一
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∽一
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，
，
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，
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α
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Φヨ ０一
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つω﹂０つ０コα´
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くｏ﹁
，
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一
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∽﹁
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，
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一
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一﹁
一
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コノ
ミ ０一
く一
〇０∽ ０〇一
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く Ｏ①ユ０ミゴΦＱ σく
，
”
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一０一
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０﹁
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コΦ∽０〇一
●ぇΦっＯ、一
ω一
Ｃ∽０コαＯ﹁
００〓００∽０ヽ一 ０ ０∽一
Φキ一
Φつ一０﹁一
０一﹁
Φ一
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ΦＯ﹁
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，´
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一
二
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００﹁
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Ｃ﹁
ΦＯつＯＱＯ一
∞〓∽ｑ ＯΦ﹁
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０﹁
Φ︵
く一
ＯΦ∽・
日 〓 ∽ ”ＦＦｏｒ”ｒ 一ｒｏ いの ︼げ 浄 〓 Ｌ 一”
日 営 ０ぞ ８ 一ｒｏ ●”一ざ 口Ｌ ｏｏ●簿 ざ ヽｏｏ〓 ｏ 〓 ｒ２ ｒＱ 〓お ｏ日 ヽ ９ 、
日 ０■
．
〓 ”∽︻０”︻”日、 “﹁●口い
口ｏ・澪 ロロ”ヽｏ ｏ︼
ｏ”﹃一ｒ”一”アの ﹄ ｏ一一ｒ””∽ｏｏ︻
”︼︻０い
コ一０”︻”””
Ｏ● 〓 ”一一ｒｏ コｐ””
口 短 “︻﹁０∽ｏ Ｏ﹃”ｒＯ
，
ヽ
︼
﹃針
目
諄
諄
︼
ぃ
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Ｆ
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計
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ュ
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い
口
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∽
目
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●
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日
の
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日
妥 口 ０日 〓 ８ ︼
８
●
∽
﹃
〓 移 争 ・Ｆ ∽一ｏａ ・手 ｏ
ｏ
”
妥
”
＾
●︻“０”
”︻い”
０一０︻ダ圏あ ヨ
ヽァ０一すｏ﹃一Ｆω ∽ｏ﹃くい
００∽ ”︻０ ０”芍”げｒｗｏ﹁げｏ”
●” ﹃ｏ¨”コ“の、 ”∽いｏコＲ〓．
●” ﹁”﹃”Ｏ﹁一すｏ ●０”口”
”一
︻
”げＯ“︻﹃●”﹂Ｆｏ一ｒ
Ｈ口 ” ∽Ｏヨ ０■ ｒ摯 ヽ島 げお コ一 ｏ９ ４ ｏｘ一 い
一〓ｏ ”０ ︼ 一〇ｏπ Ｆ Ｆｏ ”ｏｏｏ●ュ ︹ザ０ 短“︻ヽｏ８ σＯ〓 口ヽ 多 ｏ
口 いさ て
８ 甲
，
Ｑヨも︼
ｏく﹁ お 口”・ 出
ぉ ０ ０暉﹃一 ”
口ヽ”
ｏ２ のヽ 一ｒ”ｒ ｐＦｒｏｒ”Ｆ ∽ｏＨ る ｏ口０ 〓 Ｆｏ の口”””ｏ魚 一
口 ”ｏ●●い
●ｏ ””ら のぬσｏ■くの
．
．
〓 げｏ ｏｏ口∽邑 ｑ ｏ● ８ げｏ ” ダ δ 井 い︻︺〓 い
〓 ｏ井 げｏ♂ お Ｆ 営 ヽ
一
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．．
726
as
I
FREE MOVEMENT OF WORKERS
ARTICLE 45: WORKERAND THE SCOPE OF PROTECTTON
irrelevant the argument that the applicant had 'abused' EC rights in order to gain the status of
worker.32
Case C-413/01 Ninni-0rasche v Bundesminister
fiir Wissenschaft, Verkehr und Kunst
[2003]ECR t-I3187
INote Lisbon Treaty renumbering: Art 48 is now Art 4b TFEU]
28. lt should be stated that, with respect to the assessment whether employment is capable of conferring the status of worker within the meaning of Article 48 of the Treaty, factors relating to the conduct of the person concerned before and after the period of employment are not relevant in establishing
the status of worker within the meaning of that article. Such factors are not in any way related to the
objective criteria referred to in the case-law cited in paragraphs 23 and24 of this judgment.
29. In particular, the three factors referred to by the national court, namely the fact that the person
concerned took up employment as a waitress only several years after her entry into the host Member
State, that, shortly after the end of her short term of employment, she obtained a diploma entitling her
to enrol at university in that State and that, after that employment had come to an end, she attempted
to find a new iob, are not linked either to the possibility that the activity pursued by the appellant in the
main proceedings was ancillary or to the nature of that activity or of the employment relationship.
30. For the same reasons, nor can the Court accept the argument put forward by the Danish
Government that, in order to assess whether activities pursued as an employed person are effective
and genuine, it is necessary to take account of the short term of the employment in relation te the total
duration of residence by the person concerned in the host Member State, which, in the main oroceedings, was two and a half years.
31. Finally, as regards the argument that the national court is under an obligation to examine, on the
basis of the circumstances of the case, whether the appellant in the main proceedings has sought abusively to create a situation enabling her to claim the status of a worker within the meaning of Article 48
of the Treaty with the aim of acquiring advantages linked to that status, it is sufficient to state that any
abusive use of the rights granted by the Community legal order under the provisions relating to freedom of movement for workers presupposes that the person concerned falls within the scoDe ratione
personae of that Treaty because he satisfies the conditions for classification as a worker within the
meaning of that article. lt follows that the issue of abuse of rights can have no bearing on the answer
to the first question.
While the
ECJ agreed, as we shall see below, that the national court was entitled to investigate, for
the purposes ofdeciding whether to grant or refuse educational assistance, whether the applicant had
taken up (and subsequently left) employment purely in order to gain access to education in the host
Member State, this was not relevant to the question whether or not she was a worker under Article 45
as a consequence of the period of employment.
(o) DEFINITION OF'WORKER': THE |OB-SEEKER
The discussion thus hr has been concerned with those who have a job of some kind. An important
issue is how far those seeking work can benefit from Article 45.1n Royer,the ECf had referrei to the
right 'to look for or pursue an occupation'.33 Ttre issue was addressed more directly in Antonissen,
'2
33
Cases C-22 -23lOB Vatsouras (n 19) [29].
Case 48/75 Royer 11976)ECR49Z [31].
where the Court held that those who are actively seeking work do not have the full status of
but are nonetheless covered by Article 45.
a
|
727
worker,
Case C-292189 R v lmmigration AppealTribunal, ex p Antonissen
lt99llECR t-745
INote Lisbon Treaty renumbering: Art 4g is now Art
45 TFEU]
Antonissen was a Belgian national who had arrived in the UK in 1984, and had attempted unsuccessfully to find work. Following his imprisonment for a drug-related offence, the Secretary of State decided
to deport him, Following his appeal, the case was referred to the ECJ where it was argued that onry
Community nationals in possession of a confirmation of engagement of employment were entitled to
a right of residence in another Member State.
THE ECJ
9. In that connection it has been argued that, according to the strict wording of Article 4g of the
Treaty. Community nationals are given the right to move freely within the territory of the Member
States for the purpose only of accepting offers of employment actually made (Artible 4g(3Xa) and (b))
whilst the right to stay in the territory of a Member State is stated to be for the purpose of employment
(Article 48(3Xc)).
10. Such an interpretation would exclude the right of a national of a Member State to move freely
and to stay in the territory of the other Member States in order to seek employment there, and cannot
be upheld.
12. Moreover, a strict interpretation of Article 48(3) would jeopardize the actual chances that a
national of a Member State who is seeking employment will find it in another Member State. and
would, as a result, make that provision ineffective.
13. lt follows that Article 48(3) must be interpreted as enumerating, in a non-exhaustive way, certain
rights benefiting nationals of Member States in the context of the free movement of workers and that
that freedom also entails the right for nationals of Member States to move freely within the territory of
the other Member states and to stay there for the purposes of seeking employment.
Antonissenprovides a clear example of the Court's purposive approach, in suggesting a wider scope
for Article 45 than the words of the Article convey. The ECI examined the Article and identified its
PurPose: in this case, to ensure the free movement of workers. It then concluded that a literal interpretation of its terms would hinder that purpose. If nationals could move to another Member State
only when they already held an offer of employment, the number ofpeople who could move would be
small, and many workers who could seek and find employment on arrival in a Member State would
be prevented from so doing. A particularly interesting feature of. Antonissenwas the ECf's statement
that the rights expressly enumerated in Article 45 are not exhaustive. This approach leaves the Court
power to adapt the scope of the Article through interpretation, in accordance with the EU's changing
social, economic, and political climate.
However, the ECf was clear that the status of an EU national searching for work was not the same
as that of an EU national who was actually employed. Member States retain the power to expel
a
job-seeker who does not have prospects of finding work after a reasonable period of time,
without
needingto invokeArticle45(3). Moreover, there maybeprovisions, such as unemploymentinsurance,
that cannot be used by someone who has never participated in the employment market.
728
I
FREE MOVEMENT OF WORKERS
ARTICLB 45: DISCRIMINATION, MARKET ACCESS, AND JUSTIFICATION
This was seen in the earlier case of Commission v Belgiu2,3a and also inlebon,where the EC| ruled
that the social and tax advantages guaranteed to workers under EU law, in particular byArticle7(2) of
Regulation 1612/58, were not available to those moving in search of work.3s In the more r ecent Collins
case, the ECJ confirmed the distinction between fully-fledged workers who can benefit from all provisions of Regulation 1612168 concerning social advantages and equality of treatment with national
workers, and job-seekers who, although covered by Article 45, can benefit only from the provisions of
Regulation 1612168 governing access to employment.36 Nonetheless, the EC| also departed from the
strict implications of its earlier judgm ent in Lebon by ruling that when interpreted in the light of EU
citizenship equal treatment in access to employment under Article 45(2) should include the right to
apply for a job-seekert allowance under the same conditions as nationals of the host state, if they are
genuinely linked to the employment market of that state.37
'Ihe Collinsrulingwas confirmed in Ioannidis,inwbich the EC| ruled that a Greeknational seeking
his firstemploymentin Belgium was entitled in principle to a tideover allowance intended specifically
to facilitate the transition from education to the employment market, and that a national eligibility
condition requiring applicants to have completed their secondary education in Belgium was contrary
to Article 45.3t
(a) DIRECT DISCRIMINATION
In proceedings brought by the Commission against France for failing to repeal provisions of the
French Maritime Code, which had required a certain proportion of the crew of a ship to be of French
nationality, the Courtruled that Article 45 was'directlyapplicable in thelegal system ofeveryMember
State' and would render inapplicable all contrary national law.as Further, a statp can be held in breach
of Article 45 where the discrimination is practised by any public body, including public universities.
Thus Italy was responsible for the discriminatory practice of certain public universities, which did
not recognize the acquired rights of former foreign-language assistants.a6 While cases involving direct discrimination on grounds of nationality are much less common, such cases do
2013.
It is equally clear that indirect discrimination, and even impediments to market
Indirect discrimination is also prohibited by Article 45, so that a condition of eligibility for a benefit which is more easily satisfied by national than by non-national workers is likely to fall foul of the
Treaty. The ECJ has relaxed the requirements for proof of indirect discrimination, ruling in O'Flynn
that in order for indirect discrimination to be established, it was not necessary to prove that a national
measure in practice affected a higher proportion of foreign workers, but merely that the measure was
'intrinsically liable' to affect migrant workers more than nationals.a8
A common species of indirect discrimination is where benefits are made conditional, in law or fact,
on residence, place-of-origin requirements, or place-of-education requirements that can more easily
be satisfied by nationals than non-nationals.ae In Ugliola,an Italian worker in Germany challenged a
German law under which a worker's security of employment was protected byhaving periods of mili-
tary service taken into account in calculating the length of employment.so The law in question applied
only to those who had done their military service in the Bundeswehr, although the nationality of the
worker was irrelevant. The Court stressed that Article 45 allowed for no restrictions on the principle
'2
a3
It is clear that rules which directly discriminate on the grounds of nationality will be caught by
access
ta
Case C-27 8194 Commission v Belgium [1995] ECR I-4307.
33
Case 316/85 Lebo; ll987l ECR 281. Compare Case C-57195 Meints v Minister van Landbouw [1997] ECR I-6689.
36 CaseC-l38l02Collins(nl8)[30]-[33].WeshallseeinCh23,however,thatbyinterpretingtherightsofthejobseeker in the light of the Treaty provisions on citizenship, the ECJ decided that a job-seeker under Art 45 should be
entitled to apply for a job-seeker's allowance under the same conditions as nationals of the host Member State.
Ibid [54]-[73]. The aspects of the judgment which deal with EU citizenship will be considered in Ch 23.
Case C-258 104 Ofice national de I'enploi v Ioannidis [2005] ECR I-8275.
I'
!!
te http://ec.europa.eu/social/mainjsp?catId=466&langld=en.
'o V Mitsilegas,'Free Movement of Workers, Citizenship and Enlargment: The Situation in the UK' [2009] Journal
of Immigation, Asylum and Nationality Law 223.
See, eg, Case C-55/00 Gottardo v INPS [2002] ECR I-413.
"
arise but they
(n) INDIRECT DISCRIMINATION
4 ARTTCLE 45: DTSCRTMTNATTON,
MARKET ACCESS, AND JUSTIFICATION
45.4r
still
raise a strong burden ofjustification.aT
Workers as defined in the previous pages have a right to move in accordance with Article 45. This
right was qualified in relation to the 2004 enlargement when ten Central and East European states
joined. The EU took the unprecedented step of admitting new Members while denying them the
immediate right to benefit from one of the four fundamental freedoms. A transitional regime for
the free movement of workers from the new states was introduced, delaying.the full implementation of their rights of free movement for up to seven years.3e While this arrangement was made in
order to allay the fears of existing Member States that their labour markets would be flooded with
new migrant workers, the effective creation of a 'second-class' membership, however temporary, gave
rise to an understandably critical reaction from the new Member States and from other commentators.ao This transitional regime for the states involved in the 2004 enlargement ended on 30 April
2011. The transitional regime for Bulgaria and Romania, which joined the EU in 2007 will end on
Article
729
which do not depend on a showing of unequal impact,a2 can also lead to infringement of Article 45.a3
Discrimination, whether direct sr indirect, will, however, be found onlywhere two groups which are
comparable in relevant ways are treated differently, or where groups which are not comparable are
treated in the same way.aa
(e) scoPE oF PROTECTTON: NEW MEMBER STATES
3l December
I
Case C-415
A
193
Bosman (n 5).
Castro Oliveira, 'Workers and Other Persons: Step-by-Step from Movement to Citizenship, (2002) 39
CMLRev77.
{' casec-391/97 FransGschwindvFinanzamtAachen-Aussenstadt
[1999] EcRI-5451, [21]; casec-3s6l9gArben
Kaba y Home Secretary [2000] ECR I-2623; S Peers, 'Daied and Confused: Family Members; Residence Rights and the
Court oflustice' (2001) 26 ELRev 76.
" Case16TlT3CommissionvFrenchRepublicltgT[)ECR359;CaseC-lg5/g6CommissionvHeltenicRepublicllggg)
ECR I-6601; Case C-94/08 Commissionv Spainl200Sl ECR I-160; Case C-318/05 Commission v Germany
t2007j ECIi
I-6951 Case C-460/08 Commission v Greece,l0 Dec 2009.
'6 CaseC-212199 Commission v Italy l200ll ECR I-4923; Case C-ll9/04 Commission v ltaty l2o06lECR I-ds85.
nationality restrictions when fielding players in sport see case c-41 sl93 Bosman(n 5); case c-4 3gt0o Kolpak
_ " .on
(n 23); Case C-265103 Simutenkov v Ministerio de Educacihn y Cultura
[2005j ECR I-2579; Case L3IZG Don,i (n23); iase
C-2281 07 I 6 rn P et ers e n (n 27).
Case
C-237194
O'Flynn
v
Ailjuilication
Oficer
'
lt996l ECR I-2617; Case C-278194 Commission v Belgium 11996)
ECR I-4307.
{'CaseC-355/gSCommissionvBelgium[2OOO]
ECRI-1221;CaseC-350196CleanCar(nl4\;CaseC-2Z6l07Nancv
Delal v Unitersitd degli studi di Firenze, Istituto nazionale della previdenza sociale (INpS)
[200g] ECR I-3635.
!0 Case 15169 Wilrttembergischre Milchverwertung-Sildmilch-AG
v Salvatore Ugliola If giOl Sin :SS.
730 1 FREE MOVEMENT OF WORKERS
.
ofequaltreatmentotherthan in paragraph 3.ItconcludedthattheGermanlawhadcreatedanunius‐
tinable restriction by`indirectly introducing discrimination in favour oftheir own nationals alone',
since the requirement thatthe service be done in the Bundeswehr would clearly be satisied by a far
greater number ofnationals than non―
nationals.51
1n Sο lgi“ the German Post Omce increased the separation allowancc Paid tO workers employed
awayfrom theirplace ofresidencewihin GermanyDbut didnot paytheincrease to workers(Whatever
their nationalityl whoSe residence at the time oftheir initial employment was abroad,and this was
″issゴ ο″ソBθ lgi“ ″53the EC,held that a system
heldbythe ECI to be COntraryto the Treaty.521n CO″
ofretirementpenslon points that could be more easily satisned byworkers posscssing the natiOnality
ofthat Member State than by workers■ om other Member Statё s was indirectly discriminatory9 and
hence caughtbyArticle 45.In Z“ rstrass`″ ,54 the COurt held that nationalrules under which the,oint
assessment to tax of spouses was conditional on their both being resident on the natiOnal territory
were incompatible wtth ttrtide45.55
A further fbrnl ofindirect discriinination is the imposition ofa language requirement for certain
Portion ofnon― nationals than nationals win be afFected
by it.56 HoweVeL since such a requirement may well be legitimate,Article 3(1)ofRegulation 1612/68
posts,since it is likely that a far higher pЮ
of the
a1lows for the imposition of`conditions rdating to li,guistic knowledge required by reaso■
nature ofthe post to be fllled'.The Court considered the scope ofthis exception in Crο
ι らwhere a
"θ
Dutch national working in lreland as a part― tilne art teacher was relected for the full― tilne art teach―
ing Post fbr which she was otherwise selected,because she did not pass an oral examination in the
lrish language.57■ le ECI ruled that even though the teachingwaslikelyto be exclusivelyin English,
the language requirement could,so long as it was notilnPosed in a disProportionate way2fall within
Article 3(1)on aCCOunt ofthc Policy ofthe lrish governmentto promotethe usc oflrish aゞ
a means of
expressing natlonalidentityand culture。
Another form ofindirect discrimination frequently encountered in the law on frec movement of
goods and ser宙 ces,but which is equally rdevant to the context ofthe free movement ofworkers,is
the imposition of a`double‐ burden'regulatory requirement,which does not recognize appropriate
qualincations or certincations already received in thc home state.S,ch a regulation was held tO be
contraryto Article 45 in CO解
issiο
“
"ν
Porr“ rr.58
(c)OBSTACLES TO ACCESS TO THE EMPLOYMENT MARKET
It was for some tilne unclear whether Article 45 applied to national ineasures which restricted the
freedom ofmovement ofEU workers,but which were neither directly nor indirectly discriminatory
on grounds of nationality.■ his central issuc has ariも en in relation to all the`freedoms',but with
greatest frequencyin relation to free movement ofgoods.In the context ofeach ofthe freedoms,the
ARTICLE 45: DISCRIMINATION, MARKET ACCESS, AND JUSTIFICATION
I
73I
excessive obstacle to freedom of movement. It is sometimes difrcult to distinguish between
cases of
indirect discrimination and those where the EC| intervenes to protect access to the employment market, but there are nonetheless cases that fall clearly within the latter category.
The issue was first addressed directly in the context of free movement of workers in the famous
Bosman ruling, in which the transfer system developed by national and transnational football associations was found to be in breach of Article 45.se The system required a football club, which sought
to engage a player whose contract with another club had come to an end, to pay money (often substantial) to the latter club. Bosman, who had been employed by a Belgian football club, was effectively
prevented from securing employment with a French club. The fact that the transfer system applied
equally to players moving from one club to another within a Member State as to piayers moving
between states, and that a player's nationality was entirely irrelevant, did not prevent the system from
falling foul of Article 45. This was so notwithstanding the reliance placed by ihe football associations
on the Keck rulihg,60 which had narrowed the scope of the Treaty provisions on free movement of
goods. According to the Court in Bosman:
103' lt is sufficient to note that, although the rules in issue in the main proceedings apply also to
transfers between clubs belonging to different national associations within the same Member State
and are similar to those governing transfers between clubs belonging to the same national association,
they still directly affect players' access to the employment market in other Member States and
are thus
capable of impeding freedom of movement for workers. They cannot, thus, be deemed comparable
to the rules on selling arrangements for goods which in Keck and Mithouardwere held to fall outside
the ambit of Article 30 of the Treaty (see also, with regard to the freedom to provide services, Case
C-384/93 Alpine lnvestmentsv. Ministervan Financi^n t1995J ECR l-1141, paras. 36-39).
In the absence of any sufficiently convincing public-interest justification for the rule, it was found
by the EC| to be contrary to Article 45. The fact that there was no discrimination was irrelevant the
existence of an obstacle to the access of workers from one Member State to employment in another
Member State was enough to attract the application of Article 45.6r
The principle established in Bosmanwasthat non-discriminatory rules which nonetheless
impeded
the access of workers to the employment market of another state, whether imposed by the state
of
origin or destination, were caught by Article 45. It has been repeatedly applied in a steady stream of
subsequent cases.62 In Terhoeve, the ECJ ruled that provisions, such as a national law concerning the
payment of social contributions, which could preclude or deter a national of a Member State
from
leaving his country of origin in order to exercise his free-movement rights constituted an obstacle
to that freedom even if they applied without regard to the nationality of the workers concerned.63
ln Commission v Denmark6a and. Van Lent,6s the Court condemned national rules which prohibited
ECI has ruled that even nonrdiScrilninatory restrictions may breach the Treaty ifthey constitute an
51 caSeC-419ノ 92Scみ Olzν ι
′
。
Kallgeレ rapο ′
ο
碗 ersi″ riα ′iCagri′ ri[1994〕 ECRI-50,CaseC-15ノ 96K′ ′
"'4g‐
““
'oPaS″
Jc Rψ ι
′
iC[1998]ECRI-1095;
rg 119981 ECR I-47;Case C-187/96 CO″ ″Iss,ο ″νHθ ル″
ι Hα s“ ね′r Ha″ あ`ν
ッF″ ′
“2009〕 ECRI-78■
“
“"′ 03 “
″′Ply〔
2005〕 ECRI-3747;Case C-369ノ 07 CO″ ″iss`ο ″νG￠ ″
rtaケ 〔
CO溜 iss'ο
Case C-278ノ
"ν
52 caSe 152ノ 73 SOリ
“ ッνDι
み
θB“ dし sPos′ [1974〕 ECR 153.
おι
.
53 caSe 35/97[1998〕
“
“
ECRl-5325.
54 caSe C-87/99Z“ rstrassa"ν A′
rrめ ′
"s Di″ `ras120001 ECRI-333ス
“ ECRI-6443;Case
“
′
:た
′
r〔 2004〕
C-400′ 02 Merf′ ανB,PI′ asrep“ ♭
rG`r″ ars力 θ
′
αisッ ■
Dθ rscた Iα
12004〕 ECR I-8471;Case C-152ノ 03R:′ た Cο ″
"′ "zα “
"′
""[20061
ECR
I-1711,Case
“ 05 Fi"α
,20● n20n.
″,Di“ sレ た Gero′ ′ハfaI"′ I〔 2007]ECRI― ■07;Case C-155′ 09 CO“ ″iss,0″ νG″ θ
C-329ノ
`"ν
"z′
S6caSeS C-259,331-332ノ
″α″[1993〕 ECRI-4309:Case C-124/94 Cο ″″おsiο ″νC″`ε ι[19951 ECR
″a Cο ο
91 AIル
`ε
jツ
`α
αB″ ′
ο
ECRI-652Z
′agli s,“ ′f′ セrorα ′ Cα ″ ′
I-1457;Case C-90ノ 961を rri`ν υ arsi麟
":[1997〕
"jν
"′
5'caSe 379ノ 87 Croθ arν Mi"isた
ECR 3967
r/orE′
riο
SS Sec also Case C-169′
03NヽIル
isr″ riο
es Cο
:ο
"￨″
"′
traν
νR'たssた ′
""PI
``た
r‐
:′
50 caSe C-171′ 02 Cο“
″″iss′ ο″νP07′
`α
"[1989〕
“
1“ 20041 ECRI-5645.
:〔
“
"
Case c-4t5193 (n s) [98]-F031, although see the earlier suggestion in Case i2UB7 Comnission
v Belgium lt989l
EcR99Z Usl; case c-lT6lg6LehtonenvFRBsB [20001 ECRI-268i; casec-32sl}solympiqueLyonnaiisispuotiuillBernard andNeycastle UFC,I6 Mar 2010, [Z7l-l321.
60
cases c-267 and,26$l9l Keck anil Mithouanl lt993lEcR I-6092 discussed in ch 19.
6! L Daniele, 'Non-Discriminatory
Restrictions to the Free Movement of Persons' (1997) 22 ELRev l9l.
62
casec-3S5lo0DeGrootvstaatssecretarisvanFinanci€n[2002]
EcRl-llgl9;casec-2}glotschiliingandFteckSchilling v Finanzamt Nilrnberg-Sild [2003] EcR I-13389; Case C-137l04 Rotckler v Fiirslikringsk
rron lzooe] gCR
I-1441; Case C-345105 Commission v Portugal [2006] ECR I-10633; Case C-40/05 Lyyski v Uied
Uniy]sitet [zoo7l
ECR I-9* Case C-2 I 2/06 Goternment of Communautc
frangaise and Gouvernement iallon v Gouvernemetnt f amand
[2008] ECR I-1583; Case C-325108 Olympique Lyonnais (n59).
5r Case C-18/95
FC Terhoeve v Inspecteur van de Belastingdienst Particulieren/Ondernemingen Buitenland
tlgggl
ECR I-34s, [39].
5' Case C-464 102 Commission v Denmark
ECR
I-7929.
[2005]
6s CaseC-232l0lVanLentl2OO3l
ECRI-11525;CasesC-l5l-l52l}4NadinandDurre[2005] ECRI-11203.
732
I
ARTICLE 45: DISCRIMINATION, MARKET ACCESS, AND JUSTIFICATION
FREE MOVEMENT OF WORKERS
workers domiciled in one particular state from using a vehicle registered in another Member State,
on the basis that these rules might preclude workers from exercising their right to free movement or
might impede access to employmentbetween states.
The fact that non-discriminatory provisions which impede market access can be caught raises
concerns about the outer boundaries ofArticle 45, just as we saw in the case law concerning free
movement of goods under Article 34. The issue was thrown into sharp relief by Gra|ae The applicant
claimed that rules providing that compensation on termination of employment did not apply when
the worker voluntarily ended the employment to take up employment elsewhere were in breach of
Article 45. Advocate General Fennelly adverted to the dangers of regarding such rules as constituting
a breach of Article 45. He argued that neutral national rules could be regarded as material barriers to
market access only if it were established that they had actual effects on market actors akin to exclusion
from the market.6TTheECJ shared these concerns. It reiterated the principle fromBosmanconcerning
market access. It held however on the facts that the impugned legislation did not offend this principle.
The entitlement to compensation was not dependent on the worker's choosing whether or not to stay
with his current employer. It was, rather, dependent on a future and hypothetical event, namely the
subsequent termination of the contract without this being at his initiative. This was too uncertain and
indirect a possibility for the legislation to be regarded as being in breach of Article 45.s
Similarly in Weigel,the ECJ ruled that the negative tax consequences for an individual who moves
to work from one Member State to another will not necessarily be contrary to Article 45, even if it is
likely to deter the worker from exercising rights of free movement, if it does not place that individual
under any greater disadvantage than those already resident and subject to the same tax.6e
(p) INTERNAL SITUATIONS
Article 45 does not prohibit discrimination in
a so-called'wholly internal' situation. This is sometimes referred to as a situation of 'reverse discrimination', since its effect is frequently that national
workers cannot claim rights in their own Member State which workers who are nationals of other
Member States could claim there. In Saundersthe ECJ held that since there was 'no factor connecting'
the defendant 'to any of the situations envisaged by Community law', she could not rely on Article 45
to challenge an order which effectively excluded her from part of her own national territory.To
There have been attempts to circumvent the 'internal situation'barrier by relying on the right to
freedom of movement conftrred by Article 2l TFEU on European citizens, as something over and
above the rights of movement of EU workers, but these have not so far succeeded before the ECJ.7I It
will be seen below that this 'internal situation' approach by the Court has given rise to some invidious
results in the context of the rights of workers and their families'72
66 Case C-190 198 Volker Graf v Filzmoser Mashinenbau GmbH [2000] ECR I-493.
67 Ibid
[32] AG Fennelly.
"6e Ibid [24]-[2s]
judgment.
CaseC-387/OlWeigelvFinanzlandesdirektionfirVorarlbergl2$04l
ECRI-4981'[50]-[55].
to Case l7SlZ8 Rv Saurulersll979l ECR ll29; Case298l84 Pavlo lorio't, Azienda Autonomo
delle Fenovie d,ello Stato
andKougiagkasv Greecell99Sl ECRI-4329; Case C-127l08
[1985J ECR247; CasesC-225-227195 Kapasakalis, Skiathis
Mctock andOthers v Ministerfor lustice, Equality arulLaw Reform [20081 ECR I-6241; Case C-2l2l06Government of
Communaut( frangaisc (n 62) '
Cases C-54 and 65196 Ueckcr and lacquet v Land Nordrhein-Westfolen [19971 ECR I-3171; Qase C-299195
Kremzow v Austria [1997] ECR I-2529; Case L80183 Moser v Lanil Baden-Wilrttemberg [19841 ECR 2539. Compare
however, Case C -t48l}2 Garcia Avello [20031 ECR l-11613, discussed further in Ch 23; Case C-34/09 Ruiz Zambrano,
30 Sept 20f0, AG Sharpston; Draft Recommendation of the European Ombudsman to the Commission in Complaint
,'
3317120041GG.
71
see, eg, cases 35 and 36/82 Morson enil
lhanjan v Netherlands [1982] EcR 3723.
733
It is nonetheless clear, as exemplified by cases such as Terhoeve?3 and De Groot,za that aworker will
be able to use Article 45 against his or her own state where the worker has been employed
and resided
in another Member State. Such a worker may then claim that he or she has been disiriminated against
in relation to, for example, social security contributions or taxation, when returning to,work in his or
her own Member State.
(e) OBJECTIVE JUSTIFICATION
justifying indirect discrimination are broad, and not confined to the exceptions set out in the Treaty or in secondary legislation.Ts Thus in Schumacker, the Court ruled that
indirect discrimination based on the residence of a worker, whereby an EU national employed
but
not resident in a particular Member State could not benefit from personal tax allowances, could
in
certain circumstances be justified.76 This was because of the likely difference in position between
The possible grounds for
workers from other Member States and resident workers, but such indirect discrimination could
not
be justified where, for example, the non-resident worker could not benefit from personal
allowances
in the Member State of residence either. There have been a number of other cases where the ECJ has
held that differential tax rules are justified,77 but in other cases the ECf has rejected justificatory
arguments cast in terms of the cohesion of the tax system, the need to supervise taxation or prevent
tax avoidance.TE
undertakes close scrutiny of claims that restrictions are justified.Te Thus in Terhoeyeso
the
EC| considered whether heavier social security contributions levied on a worker who transferred
his residence from one Member State to another to take up work during the course of year
a
could
be justified. The ECJ rejected justifications based on the need to simplify and
coordinate tle levying
of such contributions, and technical diftculties preventing other methods of collecti on.ln
Rocklen
The ECJ
the EC| rejected arguments based on the supposed financial burden on the national
social security
scheme, ruling that justifications based on purely economic grounds could not be accepted,
and that
the justification put forward was not proportionate.sr The ECf's approach is also evident
in the following case.
Case C-325/08 0lympique Lyonnais SASP v
16
0livier Bernard and luewcastle
UFG
March 2010
The case involved challenge to a rule whereby young footballers who were trained
by a particular club
would then have to pay damages if they signed a contract with a different club. The ECJ
held that the
rule was caught by Article 4b, and then considered justification.
73
EC]'s
I
?'
Case C-18/95 Terhoeve (n 63).
Case C-385/00 De Groot (n62).
152173 Sotgiu(n52);CaseC-237/94
O'Flynn(n 48); Case C- t16l96 Lehtonen (n 59) [51]_t6 0hCaseC_222t0j
-_lr_ lase
UTECA,5Mar2009.
?6 casec-279l93FinanzamtKlln-AltstadtvRolandschumacker[1995]ECRI-225;FVanistendael,.Theconsequences
of Schumacker and Wielockx: Two Steps Forward in the Tax Processionof Echternach' (1996)
33 CMLRev 255.
77
Case C-300190 Commission v Belgium [1992] ECR I-305; Case C-204 190 Bachmann
v Belgiumlgg2l ECR I_249.
Case C-385/00 De Groot (n 62); Case C-t69lO3 Wallentin y Riksskatteverket
l2004lSCni_O+aS; C"r. i_rSZOf
Ritter-Coulais (n 55); Case C-l 50104 Commission v Denmark
ECR I_1163.
"
7e
to
8'
[20071
See, eg, Case
C-73l08
B ressol v
Case C-18/9 S Terhoeve
Case C-137l04 Rockler
Gouvernement de la Com-muniuti frangais;e,l3Apr 2010.
(n 63) 143l-1471.
(n 62\.
734
I
FREE MOVEMENT OF WORKERS
ARTTcLE 45(4):
THE ECJ
39. In regard to professional sport, the Court has already had occasion to hold that, in view of the
considerable social importance of sporting activities and in particular football in the European Union,
the obiective of encouraging the recruitment and training of young players must be accepted as legitimate (see Bosman, paragraph 106).
41. In that regard, it must be accepted that, as the Court has already held, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players (see
Bosman, paragraph 108).
42. fhe returns on the investments in training made by the clubs providing it are uncertain by their
very nature since the clubs bear the expenditure incurred in respect of all the young players they recruit
and train, sometimes over several years, whereas only some of those players undertake a professional
career at the end of their training, whether with the club which provided the training or another club
(see, to that effect. Bosman, paragraph 109).
44. Under those circumstances, the clubs which provided the training could be discouraged from
investing in the training of young players if they could not obtain reimbursement of the amounts spent
for that purpose where, at the end of his training, a player enters into a professional contract with
another club. . .
45. lt follows that a scheme provicling for the payment of compensation for training where a young
playel at the end of his training, signs a professional bontract with a club other than the one which
trained him can, in principle, be iustified by the objective of encouraging the recruitment and tqaining of
young players. However, such a scheme must be actually capable of attaining that objective and be proportionate to it, taking due account of the costs borne by the clubs in training both future professional
players and those who will never play professionally (see, to that effect, Bosman, paragraph 10g).
46, lt is apparent from paragraphs 4 and 6 of the present judgment that a scheme such as the one at
issue in the main proceedings was characterised by the payment to the club which provided the training, not of compensation for training, but of damages, to which the player concerned would be liable for
breach of his contractual obligations and the amount of which was unrelated to the real training costs
incurred by the club.
47. . . . the damages in question were not calculated in relation to the training costs incurred by the
club providing that training but in relation to the total loss suffered by the club.
48. Under those circumstances, the possibility of obtaining such damages went beyond what was
necessary to encourage recruitment and training of young players and to fund those activities.
50. A scheme such
as the one at issue in the main proceedings, under which a 'joueur
espoir'who
signs a professional contract with a club in another Member State at the end of his training period is
liable to pay damages calculated in a way which is unrelated to the actual costs of the training, is not
necessary to ensure the attainment of that objective.
5
ARTICLE +SQ): THE PUBLIC-SERVICE EXCEPTION
The ECJ has taken an expansive approach to the definition ofworker. Conversely, its approach to the
limiting clause in Article 45(4), which provides that Article 45 shall not apply to'employment in the
public service', has been restrictive. The ECJ has endeavoured to ensure that the scope ofthe excep-
tion does not go further than is necessary to fulfil the purpose for which it was included in the Treaty.
This requires an analysis of why the exception was created. The case law provides a good example of
rnn puBlrc-sERvrcE ExcBprroN |
735
the contrast between a kind of 'original intent' interpretation argued for by the Member
States and
the less historically rooted 'purposive' interpretation employed by the Court.
The EC| does not confine its 'hermeneutic monopoly' to the right-conferring
,o.h as 'worker', but extends it to the
public-service derogation: it is for the Court and not the Member State to decide
what constitutes
'employment in the public service'. The battle over the
scope of the public-service exception has been
hard fought. An explanation for this was offered by Mancini, who attributed it to 'the
widespread view
that the functioning of the public service is an exercise of full-state sovereignty'.s2
certain firndamentals concerning the interpretation of Article 45(4) emerge from the case law
i.r-,
(n) THE MEANING DETERMINED
BY THE coURT,
NOT THE MEMBER STATES
In Sotgru the EC| made it clear that it, and not the Member
exception:83
States, would define the scope of the
It is necessary to establish further whether the extent of the exception provided for
by Article 4g(4)
lnow Art 39(4)l can be determined in terms of the designation of the legal relationship between
the
employee and the employing administration
In the absence of any distinction in the provision referred to, it is of no interest
whether a worker is
engaged as a workman (ouvriefl, a clerk lemptoy1l, or an official (fonctionnaire) or
even whether the
terms on which he is employed come under public or private law.
These legal designations can be varied at the whim of nationai legislatures
and cannot therefore provide a criteiion for interpretation appropriate to the requirements of community
law.
Thus the Member States cannot deem a particular post to be 'in the public service'
by the name or
designation they give to that post, or by the mere fact that the terms of the post
are regulated by public
law. Further' it is irrelevant, according to the EC|, whether the statet rulls governiig
a necessary
nationality as
condition for entry to any Post in the public service have constitutional status, in view
of
the need for the'unity and efficacy' of EU law.8a
(n) THE
In the
ECI'S TEST FoR PUBLIC SERVICE
case extracted below, the Belgian Government, supported by the
UK, German, and French
Governments, argued that Article 45(4) differed from Article 5l TFEU. The latter
provides a similar
derogation in the context offreedom ofestablishment and freedom to provide services,
when an activity involves the'exercise of ofrcial authority'. This difference, according to the Belgian
Government,
was deliberately reflected in the wording of each.
Article 5l specifically mentions the
exercise of offi-
cial authority, which implie s afunctional concept, whereas Article 45(4) refers
to 'employment in the
public service', which is an institutional concept. On the latter definition,
what is important is the
institution within which the worker is employed, rather than the nature of the work
itself. The ECI
did not accept this argument.
t2 Mancini (n12)77.
E3
Case l52l73Sotgiu(n52) t5l.
"
[1980] ECR 3881, [18]-[19]; Case C -473t93 Commission v Luxembourgllgg6l ECR I_3202
[38].
736
I
FREE MOVEMENT OF WORKERS
ARTTcLE 45(4):
Case 149/79 Gommission v Belgium
[1s80] ECR 38Sl
INote Lisbon Treaty renumbering: Art 4g is now Art 45 TFEU]
Possession of Belgian nationality was required as a condition of entry for posts with Belgian local
authorities and public undertakings. regardless of the nature of the duties to be performed. Examples
of such posts were those of unskilled railway workers, hospital nurses, and night-watchmen. The
Belgian Government argued that, when the Treaties were drafted, there was no Community concept
of the objectives and scope of public authorities and that the Member States'governments had wished
the conditions of entry to public office to remain their preserve.
ECJ
10. That provision lArticle 48(4)] removes from the ambit of Article 48(1) to (3) a series of 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.
11. The scope of the derogation made by Article 48(4) to the principles of freedom of movement
and equality of treatment laid down in the first three paragraphs of the article should therefore oe
determined on the basis of the aim pursued by that article. However, determining the spherb of application of Article 48(4) raises special difficulties since in the various Member States authorities bcting
under powers conferred by public law have assumed responsibilities of an economic and social nature
or are involved in activities which are not identifiable with the functions which are typical of the puolic service yet which by their nature still come under the sphere of application of the Treaty. In these
circumstances the effect of extending the exception contained in Article 4g(4) to posts which, whilst
coming under the States or other organizations governed by public law still do not involve any association with tasks belonging to the public service properly so called, would be to remove a considerable number of posts from the ambit_of the principles set out in the Treaty and to create inequalities
between Member States according to the different ways in which the State and certain sectors of
economic life are organized.
Thus a state cannot bring certain activities, for example of an economic or social kind, within the
Treaty derogation simply by including them in the scope of the public law of the state and taking
responsibilityfor their performance.ss The ECJ held that the aim of the Treatyprovision was to permit
Member States to reserve for nationals those posts which would require a specific bond of allegiance
and mutuality of rights and duties between state and employee.
The Court's description of the posts that could be said to require such allegiance and to depend
upon the bond of nationality was twofold: (i) they must involve participation in the exercise of powers
conferred by public law, and (ii) they must entail duties designed to safeguard the general interests of
the state. The notion of 'powers conferred bypublic l-aw' is rather vague, given the difficulties inherent
in defining the scope of public law, but the idea of 'safeguarding the general interests of the State' is
somewhat more concrete. It seems that the two requirements are cumulative rather than alternative.
(c) APPLICATION OF THE
The convcrse, however, is also true: the application of the Art 45(4) exception is not excluded simply because the
employer in question is a Private party rather than a public body: Case C-405/01 Colegio de Oficiales de Ia Marina
Mercante Espafiolav Administracion del Estado 12003) ECR I-10391.
737
ECI'S TEST
the ECJ ruled that it did not have enough information to identify which of
the specified posts fell outside the Treaty derogation. It invited Belgium and the Commission
to
re-examine and resolve the issue in the light of its judgment, and to report any solution
to the ECf.
When they failed to agree on certain of the posts, the case came back to the ECJ two years
later. The
Court ruled that, with the exception of a limited number of posts, including certain supervisory
Posts, night watchman, and architect with the municipality of Brussels, none oithe other posts satisfied the criteria for the application ofthe public-service exception.Es
A further argument made by the four governments represented i nthe Belgiumcase was
that certain
posts which may not at the outset involve participation in the powers confeired
by public law require
a. certain flexibility of character. They argued that the duties
and responsibilities of the post may
change, or the holders of such initial posts may subsequently become eligible for careers
ai a higher
grade with duties involving the exercise of public powers. This, too, was rejected as
a reason for treating the initial Post as being within the public-service exception, since thatexception 'allows
Member
States to reserve to their nationals, by appropriate rules, entry to posts involving
the exercise ofsuch
Powers and such responsibilities within the same grade, the same branch, or the same class,.Ee
The point was made again by the ECJ in enforcement proceedings brought by the
Commission
against Italy, concerning laws Protecting the security and tenure of researchers at
the National
Research Council (CNR), which were not applied to non-nationals.eo Italy argued,
first, that the work
undertaken by the CNR involved satisfying the general interests of the state and was financed
out of
public funds. It argued, secondly, that if researchers became established members of
sta6 they could
be promoted to higher managerial positions, which would entail participation
in the exercise oipublic
power. The ECJ rejected the first argument:et
caseET
Simply referring to the general tasks of the CNR and listing the duties of all its researchers
is not sufficient to establish that the researchers are responsible for exercising powers conferred
by public law
or for safeguarding the general interests of the State. Only the duties of management
or of advrsing
the State on scientific and technical questions could be described as employment in the public
service
within the meaning of Article 48(4).
16
Case66/85lawrie-Blum(n25)[24;CaseC-4T3lg3CommissionvLuxembourg(n84)[lg],AGLCger;DO,Keeffe,
Judicial InterPretation of the Public Service Exception to the Free Movement of-workeis' in Curti"n ana
O,feeee
(n
t2) 89,96.
t7
t'
|
A post will benefit from the derogation in Article 45(a) only if it involves both theexercise of power
conferred bypublic law andthe.safeguarding of the general interests of the state.s6
Th]e a{wo imperatives driving the ECJ's insistence on the functional as opposed to the institutional test. There is the justifiable fear that the institutional approach could immunize large sectors
of
the economyfrom the reach of free movement, more especiailyin those countries that take
an expansive view of 'state employment'. There is however also the desire to break down pre-existing
stereotypes, and to get Member States to think that employment of a non-national in rnany public
sector
jobs should, ifthat person were best qualified for the position, not
be regarded as odd or unnatural.
In the Belgium
IHE
rrru puBlrc-sERvrcE ExcBprroN
"l,
eo
"
Case 149179 Commissionv Belgium U9801 ECR 3S81.
Case 149t79 Commission v Belgium II [1982] ECR 1845.
tbid [21].
Case 225185 Commission
Ibid
[9].
v ltaly [t9BZl ECR 2625.
738
I
FREE MOVEMENT OF \^IORKERS
ARTTcLE 45(4):
The second argument was equally summarily dismissed, with reference being made to the Court's
the Belgium case:e2
ruling in
It is sufficient to point out that Community law does not prohibit a Member State from reserving for its
own nationals those posts within a career bracket which involve participation in the exercise of powers
conferred by public law or the safeguarding of the general interests of the state.
However, the Court also emphasized in a later case concerning posts as master and chiei mate of
merchant ships flying the Spanish flag, that the Article 45(4) exception could be validly used only if
the rights under powers conferred by public law, for example the exercise of police powers in the event
ofdanger on board, are in fact exercised on a regular basis by those holders and do not represent a very
minor part of their activities.e3
Member States have attempted to use the exception in numerous other cases.ea There is no secondarylegislationwhich attempts to clarifythe concept. The Commission once proposed draftlegislation
to clarify the derogation, but its proposal was opposed by those who thought that the Member States
might take advantage of detailed legislation to undermine the established case law, and also that such
legislation could ossifythe process of creating a'citizens'Europe'.es The Commission instead, in 1988,
published a document in the Official Journal on the scope of Article 45(4), providing some guidance
on the sorts of state functions which it considered would or would not fall within that provision.e6
Those which probably would be covered included the armed forces, police, judiciary, tax authorities,
and certain public bodies engaged in preparing or monitoring legal acts; and those which probably
would not included nursing, teaching, and non-military research in public establishments.
The issue is still one which is fraught with ideological tensions, the underlying debateleing about
the relevance of nationality, and specifically about when it is legitimate for the Member States to
require nationality as a condition for employment. The efforts of the Member States to define the public-service derogation in institutional terms by reference to the 'public sector' have repeatedly failed.eT
The Court has adhered to a rather more diftcult but narrower 'functional' approach, which examines
closely the character of posts which might be said to require the reciprocal bond of allegiance which
is said to be characteristic of nationality. The debate provides a clear example of the federal tensions,
which emerge in many areas of EU law, over the proper scope of national as opposed to EU jurisdiction and competence, in particular where the sensitive issue of nationality is concerned. Member State
resistance to the ECJ's approach, and the judicial response thereto, is evident in Advocate General
Mancinit critical and trenchant opinion in infringement proceedings involving public nursing posts
in
France:e8
The decisions to which I have referred gave rise to severe criticisms from academic lawyers and, what
is more important, they have not been 'taken in' by numerous governments. Such resistance is not
surprising if it is borne in mind how deep-rooted is the conviction that the public service is an area in
"et Ibid [lo].
C-405 l0l Colegio de Oficiales de la Marina Mercante Espaftola (n 85).
Case 66185 Lawrie-Blum (n25) [28]; Case 33188 Allut and. Coonan v Universitd degli Studi di Venezia [1989]
ECR l59l; Case C-213l90 ASTI v Chambre des Employds Prives 099LJ ECR I-3507; Case C-4l91 Bleis v Ministire de
I'Education N ationale ll99l) ECR I-5627.
e5
Mancini (n l2).
e'
'6
e7
trrr
puBr,rc-sERvrcE ExcEprroN
|
73e
which the State should exercise full sovereignty and how wide-spread is the tendency,
in times of high
unemployment' to see the public service as a convenient reservoir of posts. Such resistance
is a matter
for concern and should be tackled head-on before cases similar to the present one multiply....
... In short. in order to be made inaccessible to nationals of another State, it is not
sufficient for the
duties inherent in the post at issue to be directed specifically towards public objectives
which influence the conduct and action of private individuals. Those who occupy the post must
don full battle
dress: in non-metaphorical terms. the duties must involve acts of will which affect private
individuals
by requiring their obedience or, in the event of disobedience, by compelling
them to comply. To make a
list. . . is practically impossible; but certainly the first examples which come to mind
are posts relating to
policing defence of the State, the administration of justice and assessments
to tax.
'. ' lt is a fact that an extremist disciple of Hegel might truly think that access to posts like the ones at
issue here [nursingl should be denied to foreigners. But anyone who does not regard
the State as ,the
march of God in the world' must of necessity take the contrary view.
It was suggested, soon after the Maastricht Treaty was adopted, that the new provisions on citizenship might undermine the thinking behind, and reduce the importance of, ihe
public-service
exception, given the emphasis of the latter on a traditional notion of loyalty between
the state and
its own nationals, to the exclusion of foreigners.e However, the Commission has
continued to bring
infringement proceedings concerning misuse of the public-service exception, which
have often been
vigorously defended by the Member States.roo
l.tit:"bJ. :?ott by Ziller examined the way in which the public-service exception has been
applied by the Member States.ror He found that most Member States had adapted
theii national rules
to comply with the EC|'s functional approach, but that there were nonetheless instances
where the
application of the test at national level was imperfect and posts were reserved to nationals
that could
justified
not be
in accordance with the ECI's test. He made a number of recommendations to improve
the existing system, and also proposed a test for free movement of workers in the public
sector.
J Ziller, Free Movement ol European Union Gitizens and
Employment in the Public Sectorr02
1) Standard common statistics should be assembled and published on
a number of essential indicators..
a
regutar basis by Eurostat for
.
2) Member States'authorities would be well advised to establish and maintain monitoring
systems,
which are indispensable in order to ensure compliance with EU law in the field of
free movement of
workers in the public sector...
3) Member States' authorities would be well advised to establish procedures and organisation
for
the purpose of facilitating free movement of workers and ensuring compliance with
EU law. . .
4) Member States' authorities would be well advised to confirm the obligation to take into
accounr
professional experience acquired in other Member State in
their legislation and regulations...
Case
U9881
oI
c7212.
CaseC-4T3l93CommissionvLuxembourg(n84);CaseC-lT3l94CommissionvBelgium[1996]
ECRI-3265;Case
C-290194 Commission v Greece [19961 ECR I-3285, where the EC] was asked once again to depart entirely from its previous case law
e8 Case 307/84 Commission v France
[1985] ECR 1725,1727-1733; O'Keeffe (n 85) 89, l0l-103.
ee
D o'Keeffe, 'Judicial Interpretation of the Public Service Exception to the Frce
Movement of workers, in
and O'Keeffe (n l2).
too See
the cases at (n 97),
curtiri
ror The Report
is available at http://ec.europa.eu/social/mainjsp?catld=455&langld=en. See also
Cross-Border
Mobility of Public sector workers (DG lll/Austrian Federal chancellery, 2o0d) ;ilable
., ***.."p""]eu/files/
repo-sitory/document/15-Cross-border-mobility-of-public-sector-worke;s_2nd_Edition.pdf.
ro2
Ibid 106-109.
740
I
FREE MOVEMENT OF I,VORKERS
5) A special effort should be made by Member States in terms of procedural and organisational
means in order to facilitate mutual recognition of professional experience. Such procedures and/or
organizational devices for the purpose of mutual recognition should be set in legislation and regulations,
or at least... indicated as a good practice in guidelines.. .
6) lt would be useful in Member States' legislation regulations and practice, or at least in explanatory documents, to clearly distinguish between professional experience (which could be defined as
the content of work accomplished) and senioritV (which could be defined as the duration of previous
working periods).
7) Member States' authorities would be well advised to confirm the portability of working periods
acquired in other Member State in their legislation and regulations. . . Portability of working conditions
means that seniority acquired in EU Member States in situations similar to those which are relevant in
the host Member State has to be taken into account on the same footing as professional experience
acquired in the host Member State-whether by citizens of other EU Member States or by the host
Member State's own nationals.
g) lt would be useful to involve the Committee of the Regions in promoting free movement of workers in the public sector. This would help overcoming the problems stemming {rom horizontal fragmentation of public authorities in the Member State.
9) lt would be useful to involve ombudsmen in guaranteeing free movement of workers in the public
sector.
.
.
(n) DISCRIMINATORY CONDITIONS
OF EMPLOYMENT
WTTHIN THE PUBLIC SERVICE ARE PROHIBITED
It is clear from Sotglr that Article 45(4) cannot be used to iustify discriminatory conditions for
employment within the public service. Germany had invoked Article 5(4) in an attempt to justify
its provisions on separation allowances for post office workers, which worked to the disadvantage of
non-nationals, and the ECJ responded as follows:ro3
The interests which this derogation lArticle 39(4)l allows Member States to protect are satisfied by the
opportunity of restricting admission of foreign nationals to certain activities in.the public service.
On the other hand this provision cannot justify discriminatory measures with regard to remunerpublic
ation or other conditions of employment against workers once they have been admitted to the
service.
The very fact that they have been admitted shows indeed that those interests which iustify the
exceptions to the principle of non-discrimination permitted by lArticle 39{4)l are not at issue.
Thus the Treaty derogation must be confined to restricting the admission of non-nationals into the
public service, and does not permit discrimination in conditions once they are admitted' If they are
ieemed sufficientlyloyal to the state to be admitted to such employment, there can be no grounds for
paying them less on account oftheir nationality'
.
DIRECTIVE ZOO4I38: NICHT OF ENTRY AND RESIDENCE oF woRKERs AND THEIR FAMILIES
]
74I
6 DTRECTTVE 2OO +lZ8: RrcHT OF ENTRY
AND RESIDENCE OF WORKERS AND THEIR FAMILIES
(n) FORMAL REQUIREMENTS FOR WORKERS
Directive 68/360 was adopted under Article 40 EC to facilitate freedom of movement and the abolition of restrictions on employed persons, in part by clarifying the formal requirements relating to the
right of entry and residence of non-nationals.roa This Directive has been repealed and replaced by the
relevant provisions of Directive 20O4B8t0s on the movement and residence of EU citizens and their
families, with'family members' defined in Articles 2 and,3 thereof.
It is important to be mindful of the ECf t interpretive methodology in relation to Directive 2004/38.
It held that the Directive aims to facilitate the exercise of the primary and individual right to move and
reside freely within Member States that is conferred directly on Union citizens by the Treaty, and that
it aims in particular to strengthen that right. The consequence is that EU citizens cannot derive lesser
rights from Directive 2004138 than from the instruments of secondary legislation which it amended
or repealed, and that the Directive must not be interpreted restrictively.ro6
Article 6 of the 2004 Directive gives an initial right of entry and residence for up to three months
to all EU citizens and their families without any conditions other than presentation of an ID card or
Passport. The interim status of job-seeker is also recognized in the preamble to the Directive, which
implicitly confirms the EC| case law on this subject.roT Article 8 of the Directive provides that workers
and their families may be required to register with the host state authorities, and upon presentation
of a valid passport or ID card and confirmation of employment (and, in the case of family members,
a document attesting to the existence of the relevant family relationship, dependency, etc), to receive
a certification ofregistration as evidence oftheir underlying right ofresidence.ros Thus the previous
system of residence permits under Directive 68/350 has been replaced with a simpler registration
procedure for workers and their families. However, family members who are not EU nationals are to
be issued with a residence card under Articles 9 and 10.
Member States are required by Article 4 to grant citizens and their families the right to leave their
territory to go and work in other Member States, simply on producing an identity card or passport of
at least five years'validity, which their Member State must provide for them and which will be valid
throughout the EU and any necessary transit countries between Member States. No exit visa requirement may be imposed. Article 5 sets out similar conditions for the right to enter another Member
State: all that is required is a valid identity card or passport and a visa requirement is impermissible,
excePt for certain third-country nationals. The conditions under which a visa can be imposed for
family members who are third-country nationals have been tightened up by Article 5(2); they are to
be issued free ofcharge and as soon as possible, and those holding a valid residence card issued by a
Member State under Article 9 are exempt from the requirement.
It is made clear in the Directive, as it was under the previous legislation and as the EC| repeatedly emphasized in its case law, that the rights to reside and to work are not conditional upon initial
satisfaction of the formalities for which the Directive provides.roe Various provisions of Directive
2004138, including Articles 5(5), 8(2), and 9(3), follow this line of case law by referring to the right of
ro4 Dir 68/360
[1968] II Of Spec Ed 485; Dir 6 41221 1t963-41Of Spec Ed
tot (Ng).
ll7.
too Case C-127108
Metock (n 70) [59], [S2], [84]; Case C-162l09 Secretary of State for Work and pensions y Taous
Lassal,T Oct20l0, [30]-[3U; Case C-145/0g landBailen-Wilrttembergv panagiotisTsakouridis,23 Nov2010, [23].
to'726-z2g.
Dienst v
Case li2l73 Sotgiu (n52) [4]; Case C- 195198 Osterreicher Gewerkschaftsbund, Gewerkschaft Ofentlicher
Republik Osterreich [2000] ECR I-10497' 1371.
'o'
toE
This provision was apparently intended to respond to Cas e 48t75 Royer (n 33), which indicated that the residence
permit did not grant any rights, but was merely evidence ofa pre-existing right under the Treaty.
toe Case 48/75 Royer (n33\.