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Flashcards in FMOW Deck (56)
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1

Hoesktra

Worker is an EU concept and not determined by national employment law

2

Worker definition

"effective and genuine work"
- excludes activités on such a small scale as to be regarded MARGINALLY and ANCILLARY

3

Meeusen v Hoofddirectie

spouse can be employed by spouse as a worker

4

Levin

part time, low pay (less than min.wage) and no economic independence (used saving)

STILL WORKER
workers can supplement income with private sources

5

Kempf

part time, less than min, wage, and applied for social assistance

still WORKER

6

Steymann

paid in kind (food and accommodation)

STILL WORKER - as long as work would conventionally be paid for with money

7

ex p. antonissen

art.45 - incl job seekers

- but no indefinite right
- this case said 6 months (after, possible if "genuine chance of being engaged")
- citizen directive shortened it to 3 months

8

Collins

job seekers treated differently
- no entitlement to tax and social advantages

9

Lawrie-Blum

1) "remuneration"
2) "economic value"
3) "under direction of a person"

here preparatory service stage of teacher training - service was of economic value for pay

- less than normal salary but that's irrelevant

10

Motive of worker? (General rule)

Irrelevant as long as work is genuine and not marginal

11

Motive of worker (exception)

Bettray
- purpose was crucial to ECJ decision
- main purpose: rehabilitation
- no genuine economic need


Trojani
- service needs to be "capable of being regarded as forming part of normal labour market"
- this was reintegration but person was unable to work for a long time

12

Saunders

If no exercise of FM then it is in principle outside the ambit of treaty rules

13

Terhoeve

if C employed in another MS and returned to home MS = exception

can't be discriminated against for working in another MS

14

Marsman v Rosskamp

National rules confined legal protection against dismissal for seriously disabled workers to NATIONALS

- obviously direct discrimination

15

Com v Italy (security work)

private security work only legally carried out by italian security firms employing italian nationals

- DIRECT DISCRMINATION

16

Com v French Republic

French law required proportion of crew to be French nationality

- DIRECT DISCRIMINATION

17

Schiebel

Austria rule - company can only trade military weapons if managing partner was Austrian

DIRECT DISCRIMINATION
- no justification
- not proportionate or necessary

18

O'Flynn

indirect discrimination - show:
1) not necessary to prove national measure affects higher proportion of foreign workers

2) just show measure was "intrinsically liable" to affect migrant workers more than nationals

19

Groener

there may be justifications for indirect discrimination

- here Dutch teacher failed Irish language test
- test is justified
- Irish language not to die

20

Calliope Schoning-Kougebetapoulou

doctor experience in another MS does not count towards experience for calculating salary on experience

- not justified
- manifestly worked to detriment of migrant workers

21

Bosman

obstacles to access to employment market (even if not discriminatory) can count as restricting FMOW

- football transfer system
- Belgium FC prevented footballer securing employment in France FC (system applies equally to players internally, nationality irrelevant)

BREACH - OBSTACLE TO FMOW

22

Volker Graf

RULE: compensation on termination of employment not available to workers who voluntarily ended employment

ECJ reiterated Bosman
- but no breach on facts
- dependent on hypothetical and future event
- too uncertain and indirect to breach art.45

23

Weigel

negative tax consequences for individual who moves from one MS to another (host MS = higher taxes)

- NO breach; no discrimination
- does not place individual under any greater disadvantage than those already resident

24

Com v Belgium (public service exception)

art.45(4) permits MS to reserve for nationals posts which would REQUIRE:

A SPECIFIC BOND OF ALLEGIANCE AND MUTUALITY OF RIGHTS AND DUTIES BETWEEN state and employee

25

Rules for public service exception

1) involve participation in exercise of powers conferred by public law

2) entail duties designed to safeguard general interests of the state

26

What doesn't count as public service

- nurse in public hospital
- trainee teacher
- foreign language assistant
- researchers at national research centre
- posts in teaching, research, TMT and gas
- posts in private security

27

Bouchereau

threat for public policy/security/health must affect fundamental interest of sovereignty (not just break law)

28

Calfa

even if previous criminal convictions, host MS cannot deport EU national just for preventative purposes

29

Adoui & Carnaille

workers conduct is not sufficiently serious if host state doesn't adopt genuine and effective measures to combat same conduct by its own nationals

30

Sotgiu

indirect discrimination can be justified on objective grounds