- The EU grants people of the member states 'an area of freedom, security of justice'
- Free movement of workers; those who are self-employed; service providers; service receivers; etc.
- TFEU Art 26: Free movement of goods, services, persons and capital
Free Movement of Workers
- Regulation can be used to make sure that people make the most of their free movement rights
- Host state rules are applied to workers
- Laval case
- Coordination of social security systems: e.g. must work for a year to be able to get unemployment benefit: 2 months in one state, 2 months in another, 8 months in another
- To apply Article 45 TFEU you must be a worker
- No definition of workers: must be decided by the ECJ
- Lawrie Blum 1986:
Practical training was only provided for public servants
Public servants were only Germans
Was she a worker? She was in training, she wasn't qualified
Three elements:
1. Subordination
2. Certain period of time
3. Must be a genuine and effect economic activity
Training was half the work load of teaching
Held to be sufficient
Reconfirmed in Racanelli 2008
- Levin 1982:
Tried to get benefits
Part time is still work
- Ninni-Orasche 2003:
Student, was looking for study benefits
Was a worker
- Trojani 2004:
Salvation Army took him in and offered him work in their institutions
Gave him a small allowance and housed him
Charity was a main reason for Trojani working
- Jobseekers are included as long as it is genuine and serious
- Eind 2007:
Fell ill, went back home without daughter and couldn't work
Relied on state benefits
Can the daughter remain in the host state as a worker?
Not able to rely on family unity
- Article 45 allows Member States to reserve positions connected to the exercise of sovereignty to nationals
- Hartmann 2007:
Mr H worked in Germany
- Art 45 binds member states if restricting immigration; if issuing legislation/rules in employment, housing, social advantages
- Art 45 also binds non-state actors: Bosman 1995: rules of football association, if one player moved from one state to another they must pay a transfer payment
- Private associations/employers make up the free market, so art 45 MUST bind them
- Angonese 2000:
Anyone who works for something like a bank, they must be bilingual
A studied in Germany
A applied for a bank in Italy
Knew Italian but hadn't participated in a test that he was as good at German as he was in Italian
The test was only once a year and he had missed it
Discriminatory because it was more difficult for him
Employment rights: discrimination
Direct discrimination, which is increasingly uncommon, concerns laws that deny, for example, benefits to workers who are not nationals.
Indirect discrimination gives a disproportional disadvantage to migrants.
O'Flynn 1996 C-237/94:
This concerned an Irish worker, working in the UK. His son died at a young age. Worker wanted to bury his son in Ireland. There was a benefit called a funeral payment given to workers. The worker couldn't get the funeral payment because it was outside of the UK. The allowance was to alleviate the financial burden and ensure that standards were of a good level. Courts ruled that Art 45 included indirect discrimination. It was sufficient that the provisions were liable to directly or indirectly adversely affect other member states' nationals.
Sotgiu: Mobility allowance for workers whose first home was in Germany was higher than those whose first home was in Italy.
Allue v Italian University (Delay)
Scholz: Employees of a University refectory were subject to the requirement of experience in Italy.
Non-employment rights
Market access: Bosman 1995 (parallel Dassonville)