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Art.45(1) TFEU

Art.45(1) TFEU provides that FMW shall be secured in the EU


Art.45(2) TFEU

Art.45(2) provides that such freedom (FMW) shall entail the abolition of ANY discrimination based on nationality as regards EMPLOYMENT REMUNERATION and other conditions of employment


Art.45(3) TFEU

Workers shall have the rights to accept employment offers in other MS, move freely and reside within that MS


Van Gend en Loos

Rights under Art.45 have direct effect


Art,18 TFEU

This prohibits discrimination on grounds of nationality. Art.45 TFEU gives effect to this in relation to workers specifically


Art.46 TFEU

European Parliament shall adopt secondary legislation in order to ensure the rights under Art.45 are given effect to.

See Directive 2004/38 and Regulation 492/2011 for examples of this.


Art.49 TFEU

This relates to freedom to provide self-employment across the EU.



For a citizen's rights to free movement to fall under the scope of workers under Art.45 TFEU rather than Art.49 (self-employment), there must be a relationship of subordination between the employee and employer



CJEU held that the concept of worker is NOT to be determined by each MS, but rather the CJEU defines the meaning of worker under Art.45 TFEU. CJEU held that a worker is any person who pursues employment activities which are genuine and effective, to the exclusion of such small activites that are purely marginal and ancillary.

So Hoekstra gives a broad definition to workers under Art.45 TFEU.



Part-time workers also constitute workers for the purposes of Art.45 TFEU - purposes of Art.45 would be jeopardised if part time workers were excluded



Workers include individuals who supplement their employment income through social welfare payments granted by the MS - but the individual must still be pursuing genuine and effective employment activities in addition to receiving welfare payments to be a worker.

So CJEU said that MS cannot restrict in-work supplementary welfare payments for just citizens from other MS - Art.45(2) TFEU provides that FMW is to entail the abolition of discrimination on the basis of nationality as regards employment remuneration and conditions.



Workers also extends to individuals who are performing subsidised work - so if an individual is pursuing genuine and effective employment but working at a subsidised rate, they still constitute a worker under Art.45 TFEU.



Jobseekers in a MS also constitute workers for the purposes of Art.45 TFEU. Under Art.45, citizens must be given reasonable time to appraise themselves and find employment within another MS - 6 months in this case was not deemed to be a sufficient time for Antonissen to find employment.

This shows the broad approach to workers taken by the CJEU - extends beyond those who are actually in employment to those seeking employment in another MS.

If AFTER the expiration period the individual can show that they have a genuine chance of being engaged in genuine and effective employment, then they cannot be forced to leave the MS



CJEU confirmed that even though jobseekers constitute workers under Art.45 TFEU, there is a distinction between fully-fledged workers and jobseekers still for the purposes of FMW rights.

Fully-fledged workers who are not jobseekers are entitled to all of the substantive FMW rights conferred by Regulation 492/2011 - whereas jobseekers are only entitled to rights related to access to employment (non-discrimination) under Art.45


Art.45(2) Scope

Art.45(2) provides that discrimination on the basis of nationality is to be abolished. This applies to both direct discrimination at law e.g. employer states that no non-MS nationals can apply.

But it also applies to indirect discrimination - things which are intrinsically liable to affect non-MS nationals more than domestic workers.



CJEU held that the employer had violated Kalliope's right to non-discrimination under Art.45(2) TFEU indirectly by not taking into account their hospital experience outside of the MS in assessing people for a promotion.

So where there is a rule which is intrinsically liable to affect migrant workers more than domestic workers, it is prohibited under Art.45(2) TFEU



Indirect discrimination by employers MAY be justified if it is part of a legitimate public policy drive adopted by the MS (and NOT just a requirement for a particular sector or job), provided it meets the proportionality criteria.

So CJEU held here that the Irish govt.'s requirement for teachers to meet a sufficient standard of Irish language was justified because it was a) part of a wider public policy drive by the govt; and b) was proportionate.



CJEU held that where a measure or rule is not discriminatory at all but hinders access to the labour market, then the rule is prohibited under Art.45 TFEU - so expands the test beyond non-discrimination to also include hindrance to access to the labour market



Where the employment is purely artificial and would NOT normally form part of the labour market, then even though the individual may be receiving payment for his employment he is NOT a worker under Art.45 TFEU.

So if employment is not part of the normal labour market and instead just a means of rehabilitation, then the individual is not a worker and cannot exercise his rights to non-discrimination on the basis of nationality as regards employment etc. under Art.45 TFEU



Rights under Art.45 TFEU do NOT apply to purely internal situations - the individual must move out of their host MS and work in another MS to engage their Art.45 rights. So where the individual just stays in their domestic MS, they cannot invoke their rights to non-discrimination on the basis of nationality under Art.45(2)


Art.45(4) TFEU

Art.45(4) contains the public service proviso - this provides that Art.45 shall NOT apply to employment in the public service



CJEU held that it is the CJEU's job to determine what constitutes 'employment in the public service'. Court made it clear that Art.45(4) cannot be used to justify discriminatory conditions to the public service, but ONLY to justify restrictions on admissions to the public service


Commission v Belgium

CJEU held that the public service proviso is intended to justify reserving positions for MS nationals which require a specific bond of allegiance and mutuality of rights between the state and employee.

Two conditions for this relationship:
1) Participation in the exercise of powers conferred by public law
2) The post must entail duties designed to safeguard the interests of the state


Commission v France

Nurse in public hospital does NOT qualify under public service proviso under Art.45(4).



Trainee teacher does NOT qualify under public service proviso.


Art.45(3) TFEU

Justification for derogation on grounds of public policy, public health or public security.


Art.27(2) Directive 2004/38

Art.45(3) TFEU is also found in Directive 2004/38. Directive 2004/38 provides that such restrictions on FMW rights are subject to the principle of proportionality.

The conduct of the individual concerned MUST represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society in order for the MS to validly restrict FMW rules.



The individual must threaten a fundamental interest of society - it cannot be someone merely breaking the law



Even in respect of current criminal convictions, an MS may NOT deport an EU national as part of a general criminal deterrence programme - needs to meet the criteria in Directive 2004/38


Adoui and Cornuaille

A migrant worker's conduct CANNOT be considered 'sufficiently serious' to justify FMW restriction where the MS does NOT adopt genuine and effective measures to combat the same conduct by its own nationals - so cannot fall within Directive 2004/38 requirements if the MS does not seek to combat the conduct for domestic nationals