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Free movement of Persons in the EU Václav Stehlík 6 /4/ and 13/4/ 2010

Support of the foreign language profile of law tuition a t the Faculty of Law in Olomouc CZ.1.07/2.2.00/15.0288. Free movement of Persons in the EU Václav Stehlík 6 /4/ and 13/4/ 2010. Structure of the free movement of persons From the beginning:

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Free movement of Persons in the EU Václav Stehlík 6 /4/ and 13/4/ 2010

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  1. Support of the foreign language profile of law tuition at the Faculty of Law inOlomoucCZ.1.07/2.2.00/15.0288

  2. Free movement of Persons in the EUVáclav Stehlík6/4/ and 13/4/2010

  3. Structure of the free movement of persons From the beginning: 1) free movement of workers – art. 45 TFEU (ex 39 TEC) 2) freedom of establishment – independent economic activity – art. 49 TFEU (ex43 TEC) 3) provision of services – art. 56 TFEU (ex art. 49 TEC) 90s: - retired persons. students - EU citizenship – art. 22 TFEU (ex 18 TEC)

  4. Free movement of workers art. 45 TFEU - art. 45 TFEU (ex 39 TEC) guarantees the free movement of workers - specific expression of the general prohibition of discrimination in art. 18 TFEU (ex 12 TEC) - prohibition of any discrimination based on nationality as regards: - employment, - remuneration - other conditions of work and employment

  5. Free movement of workers comprisestheright: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) tostay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

  6. art. 45 TFEU – direct effect - vertical direct effect - horizontal direct effect C-15/93 Bosman C- 281/98 Roman Angonese

  7. Who is protected by art. 45 TFEU? - notion of „worker“ – EU concept(75/63 Hoekstra) - defined by the ECJ

  8. Worker - must pursue activities that are effective and genuine - activities of small scale, purely marginal and ancillary are excluded - subordinated relations – employer – employee (difference to the freedom of establishment and services) - art. 45 covers only EU nationals

  9. The concept of worker in the ECJ‘s case-law - 53/81 Levin - 139/85 Kempf - 196/87 Steymann - C-357/89 Raulin

  10. The importance of the purpose of employment - 344/87 Bettray - C-456/02 Trojani

  11. Job-seekers - C-292/89 Antonissen - extensive interpretation of art. 45 TFEU - rights in art. 45 are not a closed list

  12. C-138/02 Collins - right to apply to job-seekers allowance (comes from the right to equal treatment in access to employment) Note: - worker versus job-seeker – difference in position C-258/04 Ioannidis

  13. Direct discrimination - 167/73 Commission v. France (nationality of the crews of ships)

  14. Indirect discrimination - 15/69 Ugliola (military service) - 152/73 Sotgiu (separation allowance) - 378/87 Groener (language requirements) - C-237/94 O´Flynn (grant to cover funeral expenses)

  15. Non-discriminatory rules/Indistinctly applicable rules/Access to the labour market - C-415/93 Bosman - indistinctly applicable rules restricting the free movement of workers are prohibited - exceptions: public interest Note.: counterpart judgements Cassis de Dijon (free movement of goods), Alpine Investments (free movement of services), Gebhard (freedom of establishment), Golden Share cases (free movement of capital)

  16. Boundaries of art. 45 TFEU - C-190/98 Graf (compensation on termination of employment not available in vase of voluntary termination of employment)

  17. Internal situations, reverse discrimination - 175/78 Saunders (criminal law – exclusion from part of own State territory) Use against one‘s own state: - after the return of the worker from another MS (social security, tax reliefs – C-385/00 De Groot)

  18. Exceptions - direct and indirect discrimination - only art.45/3 TFEU: - public policy - public security (Van Duyn case) - public health Art. 45/4 - employment in the public service

  19. - moreover indirect discrimination – further grounds for objective justification - cohesion of the national tax system (C-279/93 Schumacker, C-204/90 Bachmann, C-137/04 Rockler - transfer rules in sport – time limits(C-176/96 Lehtonen)

  20. Indistinctly applicable rules - public interest -Bosman

  21. Public service exception – art. 45/4 TEC Why this exception was introduced? Who decides on the content of this exception?

  22. 149/79 Commission v. Belgium I - posts must involve direct or indirect participation in the exercise of powers conferred by public law - posts must comprise duties designed to safeguard the general interests of the State or of public authorities

  23. - 225/85 Commission v. Belgium II - delimitation of professions covered by the exception Sotgiu case - prohibition of any discrimination if a foreigner was accepted to the post

  24. Questions: What does the free movement of persons consist of? What are the effects of provisions on free movement of workers? What is the concept of workers under art. 45 TFEU? What kind of restrictions are prohibited? What is the importance of Bosman case? What are the exceptions to free movement of workers?

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