Summary: Ws5 Free Movement Of Workers: Equal Treatment (Art. 45(2))

Read the summary and the most important questions on WS5 Free movement of workers: Equal Treatment (Art. 45(2))

• 1 STEP 1: identify whether the individual falls within the definition of a worker under Article 45(1)

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• 1.1 STEP 2: Article 45(2) TFEU prohibits discrimination

• Is a MS allowed to treat a worker who is not a national of the host state unfavourably and what does Article 45(2) TFEU say about this?

  Article 45(2) prohibits 'discrimination based on nationality' as regards 'employment, remuneration and other conditions of work and employment' 
  
  (e.g, paying a worker who is not a national of the host state, less)

• 1.2.1 Article 1

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• Will EU national migrant workers be treated the same as nationals of the host state when taking up employment under art.1(2)?

  EU national migrant workers have the right to take up employment with the same priority as nationals of the host MS.

• 1.2.2 Article 3

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• Explain how art. 3(1) was confirmed in (Groener v Minister) where a Dutch national was refused a job in Ireland?

  The Dutch national was refused a job at an Irish College as she failed the Irish language test. The ECJ held that such conditions must apply to all applicants and were proportionate. 

• 1.2.3 Article 6

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• If a national hold an offer for a job in another MS and is required to take a vocational test by their employer is that discriminatory Article 6(2)

  It is not discriminatory if ALL employees have to take the test regardless of nationality.

• 1.2.4 Article 7 (amplifies rights under Art. 45(2))

• Explain how Article 7(1) amplifies basic rights in Article 45(2) TFEU?

  Provides that a migrant worker must not be treated differently on grounds of nationality in relation to conditions of employment, specifically remuneration, dismissal and re-employment.

• Are EU-national migrant workers entitled to the same social and tax privileges as national workers Article 7(2)

  Migrant workers are entitled to the 'same social and tax advantages as national workers' = e.g., fare reductions/discounts, etc.

• 1. Explain whether 'social advantages' were interpreted restrictively in (Cristini v SNCF)?2. Do the benefits have to be attached to the worker's employment?

  The ECJ held that 'social advantages' cannot be interpreted restrictively and can include fare reduction cards for large families.
  
  Does not have to be attached to the worker's employment.

• 1.3 Directive 2004/38

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• Do family members of an EU-national migrant worker have the right to take up employment under art. 23?

  Family members of an EU-national migrant worker can take up employment irrespective of nationality.

• 2 STEP 3: is it Indirectly discriminatory?

• 2.1 Indirect discrimination

• What is the definition of indirect discrimination and are migrant workers in practice discriminated against (Allue)?

  The laws apply equally to everyone but in practice discriminate against migrant workers. In (Allue), an Italian law provided a 1-year fixed-term contract for foreign language teachers. Foreign nationals were most likely to be teaching foreign languages, which indirectly discriminated against them.

• 2.2 Non-discriminatory

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• Although the measure in (Bosman) applies to all nationals, explain why this would inhibit FM of workers?

  A transfer fee had to be paid by the end of a football contract, regardless of nationality. However, the ECJ held that this rule could inhibit FM.