Free Movement Of Workers Notes

Definition of Worker

Article 39EC:

Freedom of movement for workers shall be secured within the Community.

Abolition of any discrimination based on nationality [as regards] employment, remuneration and other conditions.

Right to: (i) accept offers of employment, (ii) move freely within MS for this purpose, (iii)stay in MS for employment, (iv) remain in MS after employment

Exception for Public Services

Roman Angonese (ECJ 1998)

Facts

• The reference arose out of a case where an Italian national challenged an Italian law which made possession of a certificate of proficiency in Italian and German a prerequisite for a job in a regional public service.

• It was a fact that it was difficult for people who were not residents of that region to obtain a certificate.

Issue

• Free Movement of Workers

Judgment

• As Article 39 is drafted on general terms it applies not only to public authorities but also to rules of any other nature aimed at collectively regulating employment – this ties in with the nature of employment regulation which is a combination of governmental and private regulation.

• Since it is difficult for people outside the province in question to obtain a certificate and the majority of its residents are Italian nationals, nationals of other Member States are subject to discrimination.

• This is so regardless of the fact that it does not confer an advantage on all Italians, nor does confer a disadvantage only on non-Italians.

• This measure can only be permissible if it were based on objective factors unrelated to nationality and constituted means proportionate to a legitimate aim being pursued.

• The requirement that the applicant speak a certain language is a legitimate justification but the fact that he must use the specific Certificate to establish his proficiency is not.

Hoekstra (ECJ 1963)

Issue

• Worker – Definition

Judgment

• The fact that the Treaty contains Articles which deal with the free movement of workers give the Community competence to deal with their definition.

• Allowing Member States to define 'worker' would allow them to circumvent the Treaty's provisions.

• The term 'worker' is not confined to people who are actually in employment (e.g. it refers to a right to remain in the State after their employment has expired)

• Social security benefits available to domestic citizens whose employment has expired and who are capable of finding work again must also be available to 'workers' from other Member States.

Levin (ECJ 1981)

Facts

• The reference arose out of case where Ms. Levin was refused permission to reside in the Netherlands as she was not engaged in a gainful employment there.

Issue

• Worker – Earning less than support level – Supplemented income

Judgment

• The definition of worker cannot depend on minimum income levels or hours worked in national legislation, as these criteria can be used to undermine the objectives of the Treaty by preventing a uniform standard across the Community.

• The Treaty guarantees free movement for workers regardless of whether they are permanent, seasonal or frontier workers or workers for the purposes of providing services.

• As the purpose of the provisions in question is to raise the standard of living of Community nationals by ensuring harmonious economic development, then part-time work, as a means of raising one's standard of living can be a legitimate source of employment for a 'worker'

• However, if this employment is purely marginal and ancillary, the person thus employed will not be a worker – once they are engaged in a genuine economic activity however, they must be given freedom to travel.

Steymann (ECJ 1987)

Facts

• The reference arose out of a case where a German national was refused a residence permit by the Dutch authorities, as they did not view him as a 'worker' due to his employment consisting of plumbing for the communal religious community in which he was involved.

Issue

• Worker – Genuine Economic Activity

Judgment

• In this case the members of the religious community must work in exchange for provision for their material needs – this is an indirect quid pro quo situation.

• As the national court has held that the work done was genuine and effective, it does constitute a genuine economic activity.

Raulin (ECJ 1989)

Facts

• The reference arose from a case where a French national was refused a residency permit by the Dutch authorities despite the fact that she worked as an on-call waitress for a very limited number of hours during her stay.

Issue

• Worker – Marginal and ancillary work

Judgment

• The essential characteristic of employment is the performance of services under the direction of the employee in exchange for remuneration – the legal nature of the relationship is not decisive and the fact that this is on-call work does not necessarily mean that the employee is not a 'worker'

• The national court may decide if the work is marginal and ancillary taking into account the irregular nature and limited duration of the work and the fact that the employee must remain available to work.

Lawrie Blum (ECJ 1985)

Facts

• The reference arose out of a case where an English national was refused access to teacher training in order to qualify as a teacher in a Gymnasium.

Issue

• Worker – Access to training – Public service exception

Judgment

• It is clear that during the period of teacher training the trainee is under the direction and supervision of the school to which she is assigned, teach lessons and perform other tasks of economic benefit in exchange for remuneration in terms of money – thus the applicant is a worker.

• The public service exception must be given a strict construction – it must be understood as limited to those posts which involve direct or indirect participation in the exercise of powers conferred by public law and whose function involves protection the general interests of the State or public authorities, and thus require a special relationship of allegiance to...

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