Summary: Ws5 Free Movement Of Workers - Right Of Entry And To Reside (Article 45(1))

Read the summary and the most important questions on WS5 Free Movement of Workers - Right of Entry and to Reside (Article 45(1))

• 1 STEP 1: DEFINE the relevant treaty article and whether the individual falls within the definition of a 'worker'?

• 1.1 Relevant treaty provisions - article 45

• What does Article 45(1) TFEU guarantee workers of the EU?

  Article 45 guarantees the free movement of workers within the EU.

• 2 STEP 2: What is a 'worker' under Article 45

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• 2.1 Worker - 3 part test (Lawrie-Blum)

• Although the TFEU does not define a 'worker', explain the three part-test in (Lawrie-Blum) which defines a 'worker'?

  • Perform services for another person
    
  • Under the control of that person
  • Receives remuneration

• 2.2 Job-seekers

• Does a person seeking work come within the definition of a 'worker' under art. 45? What did the ECJ rule in (ex p Antoniseen)?

  Art. 45 has been extended to include job-seekers.

• Under Article 6(1) of the Directive 2004/38, how long can a Union citizen take up residence in another MS and are they expected to find employment or carry out the economic activity during this period?

  • All EU citizens have a right of residence of up to 3 months in other MSs
    
  • No need to carry out an economic activity during this period.

• Under Article 14(4)(b) of the Directive 2004/38, can an EU citizen be deported whilst seeking employment?

  An EU citizen cannot be deported if they are still looking for work and have a genuine chance of getting it.

• 2.3 Part-time workers

• Explain the type of work that must be completed in order for part-time workers to be considered 'workers' (Levin)?

  The work is 'effective and genuine' and not 'marginal and ancillary'.

• Explain why the part-time music teacher in (Kempf) qualified as a 'worker'? Did state benefits impact this?

  Kempf, a German national, was a part-time music teacher who applied for state benefits as his income was below subsistence level. The ECJ held Kempf was still a 'worker' even if his income was supplemented by other lawful means such as state benefits.

• 2.4 Unpaid religious workers

• Explain why the unpaid religious worker in (Steymann) was considered a 'worker' under Article 45?

  Facts: A German national was a member of a religious community in the Netherlands and carried out various unpaid activities.
  
  Judgement: the ECJ held that:
  
  

  • unpaid religious workers were 'workers' because they contributed to the community's economic activities
  • received benefits which acted as an 'indirect wage'.

• 2.5 Working as part of a drug-rehabilitation programme is not work!

• Explain why a drug addict undertaking therapeutic work as part of a drug-rehabilitation programme was not considered a 'worker' in (Bettray)?

  His work was part of the rehabilitation programme. The scheme was to benefit him and did not carry out 'genuine' economic activity.

• 3 STEP 3: If an EU national, what rights can they exercise in terms of entry and residence in a MS (workers)

• 3.1 Identify relevant primary legislation = Article 45

• Explain what rights are included in art. 45(3) and is the EU national allowed to stay while working?

  • Includes rights to 'move freely within the territory of MSs'
    
  • Includes the right to 'stay' in a host state while working and 'remain' thereafter