Summary: 4. Free Movement Of Persons

Read the summary and the most important questions on 4. Free movement of persons

• 1 Free Movement of workers

• According to art. 45 TFEU, the free movement of workers entails four rights regarding employment and staying in MS. What are they?

  1. To accept offers of employment actually made;
     
  2. to move freely within the territory of MS for this purpose;
  3. to stay in a MS for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid own by law, regulation or administrative action;
  4. to remain in the territory of a MS after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

• 1.1 The core of the free movement of workers

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• There are also three secondary law rules on free movement on workers in Dir 2004/38/EC, Reg 492/2011 and Reg 883/2004. What are they?

  • Dir 2004/38/EC: on the right of citizens of the Union and their family members to move and reside freely within territory of Member State
    
  • Reg 492/2011 on freedom of movement for workers within the Union
  • Reg 883/2004: on the coordination fo social security systems

• 1.2 Workers' rights

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• What are the three main worker's rights?

  1. Right to stay - leave, enter = core of free movement
     
  2. Right to access to jobs
  3. Comprehensive right to equal treatment

  • employment and payment
    
  • “social and tax advantages” (Art 7 para 2 Reg 492/2011)
    
  • membership of trade unions and the exercise of related
    rights (Art 8 Reg 492/2011)
    
  • housing (Art 9 Reg 492/2011)
    
  • educational, apprenticeship and vocational training courses
    (Art 10 Reg 492/2011)
    

• 1.3 Workers - characteristics

• Since case C-94/07 Raccanelli, term worker is  interpreted widely and autonomous term of EU law. In art. 1 para 1 Reg 492/2011, it is:

  "activity as an employed person". 
  Person is obliges, at instruction of employer, to perform particular task for a reward
  
  also artistic, sporty social kind! 
  case 36/74 Walrave and Koch, case C-51/96 Deliège, case 415/93 Bosman

• 1.4 Derogation

• According to art. 45 para 4 TFEU, there is a derogation in employment in public service. What kind of jobs are we talking about here?

  • Participation in exercise of public authority
    
  • everything related to safeguarding general interest of state/public bodies: judiciary, police, army, diplomacy

• What kind of jobs that are in public service are not excluded in this case?

  Teachers, legal clerks, health care jobs, jobs without management function with communal bodies, post, railways. 
  
  Exception does not apply to institution as a whole!

• 1.5 Beneficiaries

• What are the benificiaries for Union citizens in EU law ?

  1. Regularly Union citizens searching for work in another MS
     
  2. returning workers; case C-390/90 Singh
  3. cross-border commuter; case C-212/05 Hartmann
  4. employers; case C-35/96 Clean Car
  5. no application of art TFEU on internal cases; case 175/78 Saunders
  6. transitional rules with regard to new MS

• In principle, third country nationals are excluded. When are they not excluded? Three reasons:

  1. Family members can move as well (art. 10 reg 492/2011)
     
  2. association agreement (eg EEC-Turkey 1963 OJ 1964, 3687)
  3. long-term residents

• 1.6 Obliged entities and persons

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• What are the types of obliged entities that can hire a worker?

  • MS, including their counties
    
  • collective organisations (sports associations, social partners)
  • private employers (as far as principle of equal treatment is concerned) 
  • according to art 45 TFEU
  • employment conditions art. 7 Reg 492/2011

• ECJ case C-415/93, judgement of 15 Dec 1995, Bosman, paras 82-87, 92- 104. What were the facts of the case?

  
  

  • Mr Bosman, professional Belgian footballer, Belgian premier league club
    
  • In order to change the club he was put on a transfer list (according to rules of
    national football associations and UEFA: transfer money of ~11 million Belgian
    francs).
    
  • Bosman contacted a French club he wanted to join. The transfer was prevented by
    Belgian club (even after contract has expired no clearing of transfer by UEFA for lack of payment of the transfer money).