Part II EU LAW – Lesson 4.pptx

# Free movement of workers The principle of free movement of workers establishes the right for EU nationals to seek and undertake employment in any Member State, with corresponding obligations on Member States and private entities to not impede this right. ### 1.1 Who is entitled to invoke the right of free movement of workers? The right to free movement of workers can be invoked by individuals who qualify as "workers" under EU law. #### 1.1.1 Definition of a "worker" The Court of Justice of the European Union (CJEU) defines a worker as "a person who has a working relationship vis-à-vis another person." This relationship is characterized by: * **Performance of services:** The individual performs work for another person. * **Subordination:** The work is carried out under the supervision and authority of the employer. * **Remuneration:** Financial compensation is paid for the work performed. There are no specific requirements regarding the salary or wages for an individual to be qualified as a worker. The duration of the employment relationship, whether for a definite or indefinite period, is also irrelevant. ### 1.2 Who has to respect and comply with the principle of free movement of workers? The principle of free movement of workers imposes obligations on a wide range of actors within the EU. #### 1.2.1 Member States and public authorities Member States and their public authorities are directly bound by the principle of free movement of workers. They must not enact or apply legislation that obstructs this right. #### 1.2.2 Private organisations and associations Private organisations and associations, including sporting associations, are also subject to the obligations arising from the free movement of workers, as established in the *Bosman* case. #### 1.2.3 Private employers Private employers are bound by the principle of free movement of workers, particularly when their recruitment practices or employment conditions could disproportionately disadvantage nationals of other Member States, as highlighted in the *Angonese* case. ### 1.3 Specific rights protected by the principle The principle of free movement of workers protects several key rights for individuals seeking employment across the EU. #### 1.3.1 Right to accept an offer of employment Workers are entitled to accept an offer of employment within any Member State of the EU. #### 1.3.2 Right to travel and reside for employment This includes the right to travel freely within the EU and to move from one Member State to another to reside there for the purpose of carrying out an economic activity. #### 1.3.3 Right to stay in the host Member State Workers have the right to stay in the host Member State even after their employment has ended. #### 1.3.4 Facilitation of associated rights The EU is tasked with adopting legislation to facilitate free movement, which also encompasses associated rights such as family reunification and access to social security and tax advantages across Member States. ### 1.4 Key case law on the free movement of workers Several landmark cases have shaped the understanding and application of Article 45 of the Treaty on the Functioning of the European Union (TFEU). #### 1.4.1 The Bosman case **Context:** The *Bosman* case concerned rules of sporting associations that required the payment of transfer, training, or development fees when a professional footballer moved from a club in one Member State to a club in another Member State after their contract expired. **Question:** Did Article 45 of the Treaty preclude the application of such transfer rules? **Applicability to Sport:** The CJEU established that sport is subject to EU law only insofar as it constitutes an economic activity. Professional or semi-professional football, where players are in gainful employment, falls within this scope. **Obstacle to Free Movement:** The Court found that transfer rules could hinder the free movement of workers. If a new club refused to pay the transfer fee, the player's Member State of origin might not allow them to leave, thereby affecting their employment opportunities in another Member State. The rules were considered an obstacle because they prevented a national from leaving their country of origin to exercise their right to free movement. **Justification for Derogations:** Such rules could only be justified if they pursued a legitimate aim compatible with the Treaty, were justified by reasons of public interest, ensured the achievement of that aim, and did not go beyond what is necessary for that purpose (proportionality). **Outcome:** The CJEU concluded that Article 45 of the Treaty precluded the application of rules that prevented a professional footballer from being employed by a club in another Member State without the payment of a transfer fee. The justifications put forward by the Member States (maintaining financial/competitive balance and supporting talent development) were found insufficient or achievable by less restrictive means. > **Tip:** The *Bosman* case broadened the scope of Article 45 TFEU to include private rules of sporting associations that affect employment opportunities, even if these rules apply irrespective of nationality. #### 1.4.2 The Angonese case **Context:** A bank in Bolzano, where both Italian and German are spoken, required applicants for a job to possess a specific certificate of bilingualism. This certificate could only be obtained in Bolzano. An Italian national who had studied in Austria and could speak both languages was denied employment because he lacked this specific certificate. **Question:** Did the bank's requirement for a specific certificate constitute discrimination contrary to Article 45 of the Treaty, thereby hindering the free movement of workers? **Analysis of the Requirement:** * The bank's exclusive acceptance of one particular diploma effectively disadvantaged individuals not residing in Bolzano, making it difficult or impossible for them to access employment. * As the majority of Bolzano's residents are Italian nationals, this requirement disproportionately disadvantaged nationals of other Member States compared to residents of that province. * Crucially, the Court noted that a rule does not need to exclusively advantage nationals of one Member State or disadvantage only nationals of other Member States to be considered discriminatory. It can be discriminatory if it disadvantages nationals of other Member States and nationals of other regions within the same Member State. **Conclusion:** The CJEU held that while requiring a certain level of linguistic knowledge may be legitimate, making the possession of a specific diploma obtained only in one province of a Member State the sole criterion, without allowing for equivalent qualifications from other Member States, was disproportionate and discriminatory on grounds of nationality. This constituted a breach of Article 45 TFEU. **Justification:** Any such breach could only be justified if it was based on objective factors unrelated to nationality, pursued a legitimate aim, was accurate in achieving that aim, and was proportionate to the aim pursued. > **Example:** This case illustrates how seemingly neutral national rules, like language certificate requirements, can be discriminatory if they create a de facto barrier for workers from other Member States. #### 1.4.3 The Las vs PSA Antwerp case **Context:** Mr. Las was dismissed from his employment with PSA Antwerp. His employment contract was drafted in English. A Flemish regional decree mandated that for employment relationships with an international character for undertakings established in the Dutch-speaking region, all employment-related documents must be drafted in Dutch, on pain of nullity. Mr. Las argued his contract was null and void due to the Flemish Decree. PSA Antwerp countered that the decree should not apply because the employment contract concerned a person exercising their right to freedom of movement for workers and that the application of the decree was an unjustified obstacle to this freedom. PSA Antwerp also pointed out that the contract was in English, a language understood by both parties, especially given that the director signing the contract was a Singapore national with no knowledge of Dutch. **Question:** Did the Flemish Decree on the Use of Languages infringe Article 45 TFEU by imposing an obligation to draft employment documents in Dutch, thus constituting an obstacle to the free movement of workers? **CJEU Reasoning:** The Court emphasized that parties to a cross-border employment contract do not always possess knowledge of the official language of the Member State concerned. To establish free and informed consent, parties must be able to draft their contracts in a language they both understand. Legislation that not only requires the use of the official language but also *fails to allow* an authentic version in a language known to all parties is less conducive to freedom of movement than legislation that permits such alternatives, while still potentially serving its objectives. **Conclusion:** The CJEU concluded that the Flemish Decree, by imposing the obligation to use Dutch and not allowing for an alternative language of understanding for international employment contracts, constituted an obstacle to the freedom of movement for workers. This obstacle could not be justified by overriding reasons of public interest in a manner that would outweigh the infringement of Article 45 TFEU. The Court implied that a less restrictive approach, allowing for contracts in a mutually understood language alongside or as an alternative to the official language, would be more compatible with EU law. > **Tip:** This case highlights the tension between national language regulations and the EU principle of free movement, particularly in international employment contexts where informed consent is paramount. The proportionality of national measures is key. --- # Institutions of the EU The European Union is governed by a set of distinct institutions, each with its own composition, competences, and functioning, designed to advance the Union's objectives and manage its diverse policy areas. ### 2.1 The European Parliament The European Parliament is composed of representatives of EU citizens who are directly elected every five years. The number of Members of the European Parliament (MEPs) is determined after each election, with a current total of 720 MEPs for the 2024-2029 term. Representation is based on a degressive proportionality principle, meaning larger Member States have more MEPs, but MEPs from larger states represent more citizens than those from smaller states. Germany, for example, has 96 MEPs, while Luxembourg has 6. The Parliament has seats in Luxembourg, Brussels, and Strasbourg, where plenary sessions are held. MEPs are organized into political groups, not national political parties, highlighting the EU's structure as distinct from a federal state. #### 2.1.1 Competences of the European Parliament * **Legislative competence:** The Parliament acts as a co-legislator alongside the Council of the EU in the ordinary legislative procedure, sharing equal footing. It also participates in special legislative procedures. * **Control and scrutiny:** It exercises oversight over other executive institutions. This includes posing questions to the Commission, which is obliged to answer, and questions to the Council and European Council, who are not. * **Motion of no confidence:** The Parliament can pass a motion of no confidence (also known as a motion of censure) against the Commission. If a sufficient majority is obtained, the entire Commission, including the High Representative for Foreign Affairs and Security Policy in their Commission duties, must resign. * **Budgetary powers:** It shares responsibility with the Council of the EU for fixing the annual EU budget and grants discharge to the Commission for the implementation of the budget. ### 2.2 The European Council The European Council, established as an institution by the Lisbon Treaty, comprises the Heads of State or Government of the EU Member States. It is supported by its President, who is elected by the European Council for a once-renewable two-and-a-half-year term, and the President of the European Commission. The High Representative for Foreign Affairs and Security Policy also participates in practice, though not as an official member. The European Council provides the impetus for the EU's development and sets its general political guidelines, but it does not possess legislative powers. ### 2.3 The Council of the EU (or the Council of Ministers of the EU) The Council of the EU is a principal legislative organ that adopts EU legislation through regulations and directives. It also prepares decisions and non-binding recommendations. Decisions are made by simple majority, qualified majority, or unanimously, depending on the legal basis of the act. #### 2.3.1 Composition and Presidency The Council is composed of representatives from each Member State at ministerial level, empowered to represent their government and bind their state. The Council meets in ten different configurations, such as the Council of General Affairs or the Council of Foreign Affairs, depending on the policy area. The Presidency of the Council rotates among Member States every six months, following a sequence determined by the European Council. Since the Lisbon Treaty, Member States holding the presidency work in groups of three, called "trios," for 18-month periods. This system ensures continuity by setting long-term goals and a common agenda over an 18-month span, with each of the three countries preparing a more detailed six-month program. #### 2.3.2 Competences of the Council of the EU * **Legislative competence:** The Council is a key actor in the ordinary legislative procedure, typically requiring qualified majority voting (QMV). In some sensitive areas, unanimity is required. * **Assisted by COREPER:** The Committee of Permanent Representatives of the Governments of the Member States (COREPER) assists the Council in preparing its work. * **Budgetary task:** It shares the responsibility for establishing the EU budget with the European Parliament. * **Execution and implementation:** The Council plays a key role in the execution and implementation of EU legislation, often delegating these tasks to the Commission. #### 2.3.3 Voting in the Council of the EU * **Qualified Majority Voting (QMV):** Generally, decisions are made by QMV, which requires 55% of the Council members representing at least 65% of the EU population. A blocking minority consists of at least four Member States representing more than 35% of the population. * **Unanimity:** The Council votes unanimously on matters considered sensitive by Member States, including common foreign and security policy (with some exceptions), granting new rights to EU citizens, EU membership of new states, harmonization of national legislation on indirect taxation, social security, social protection, EU finances, and certain provisions in justice and home affairs. ### 2.4 The European Commission The Commission is the EU's executive arm, composed of one commissioner per Member State, appointed for five-year terms. Commissioners are chosen for their general competence and commitment to the EU's goals and must act independently in the Union's interest, providing guarantees of their independence. This contrasts with the Council of Ministers, where members often represent national interests. #### 2.4.1 Appointment of Commissioners The appointment process involves the European Council proposing a candidate for the President of the Commission to the European Parliament. The Parliament then elects this candidate. The Council of the EU, by common accord with the President-elect and acting by QMV, adopts the list of other commissioners based on Member State suggestions. Finally, the President, other members, and the High Representative are subject to a vote of consent by the Parliament as a body, and then appointed by the European Council by QMV. The entire Commission must receive the Parliament's approval as a collective entity. #### 2.4.2 Competences of the Commission * **Legislative initiative:** The Commission holds a monopoly on legislative initiative, drafting EU budget proposals. * **Executive powers:** It exercises important executive powers, particularly in competition and external trade. * **Supervision of EU law:** The Commission encourages the general interest of the EU and supervises compliance with the Treaties and EU law, with the power to initiate proceedings before the Court of Justice of the European Union (CJEU). * **International agreements:** It is responsible for negotiating international agreements, which are then submitted to the Council for conclusion. * **Exceptions to legislative initiative:** In specific domains like social security, operational police cooperation, and judicial cooperation in cross-border criminal matters, a Member State can request the European Council to submit a proposal, initiating an "alarm-call" or "emergency brake" procedure that suspends the ordinary legislative procedure until the European Council reassigns the matter. ### 2.5 The High Representative for Foreign Affairs and Security Policy The High Representative for Foreign Affairs and Security Policy functions similarly to a Minister of Foreign Affairs. Appointed by the European Council acting by QMV and with the consent of the President of the Commission, this role is crucial for executing the Council's Common Foreign and Security Policy (CFSP). The High Representative is also an ex-officio member of the Commission and its Vice-President in charge of external affairs. There is a recognized overlap and potential for difficulty in combining the competences of the Commission and the High Representative to ensure an efficient and clear external policy for the EU. ### 2.6 Court of Justice of the European Union (CJEU) The Court of Justice of the European Union, including the General Court, ensures that EU law is interpreted and applied uniformly across all Member States. It adjudicates on disputes between national governments and EU institutions, and can be called upon by citizens, companies, or organizations to rule on the legality of an EU act if they believe it infringes their rights. ### 2.7 European Central Bank The European Central Bank (ECB) is responsible for monetary policy for the euro area and for the functioning of the payment systems. It is also responsible for the stability of the financial system and the prudential supervision of credit institutions. ### 2.8 European Court of Auditors The European Court of Auditors (ECA) audits the EU's revenue and expenditure to ensure financial regularity and sound financial management. It reports its findings to the European Parliament and the Council. ### 2.9 Other Organs and Agencies Beyond the main institutions, the EU has several other organs and agencies, including the Economic and Social Committee (composed of representatives of employers' organizations, trade unions, and other interest groups), the Committee of the Regions (composed of representatives of regional and local authorities), and COREPER. These bodies contribute to the EU's legislative and policy-making processes. ### 2.10 Interplay of Institutions and Legislation The functioning of the EU institutions is intricate, with various procedures and interactions shaping the legislative output. The ordinary legislative procedure, for instance, involves the Commission's initiative, followed by readings and potential amendments by both the European Parliament and the Council of the EU, culminating in a conciliation phase if agreement is not reached. The effective application of EU law relies on the precise interpretation and enforcement by the CJEU and the diligent implementation by the Commission and Member States. ### 2.11 Case Law Examples: Free Movement of Workers The principle of free movement of workers is a cornerstone of EU law, and its application has been shaped by significant case law: #### 2.11.1 Bosman Case This landmark case concerned transfer rules in professional football, which required clubs to pay a fee to a player's former club upon transfer to another Member State. The European Court of Justice (ECJ) ruled that Article 45 of the Treaty on the Functioning of the European Union (TFEU) precludes such rules, as they hinder the free movement of workers. The ECJ found that the justifications offered by sporting associations—maintaining financial and competitive balance and supporting talent development—were not sufficiently met by these rules and that less restrictive means could achieve these aims. #### 2.11.2 Angonese Case In this case, a bank required applicants for a recruitment competition to possess a specific language certificate, obtainable only in one province of Italy. The ECJ held that this requirement was discriminatory on grounds of nationality, as it disadvantaged nationals of other Member States and even Italians residing outside that specific province. The Court emphasized that while assessing linguistic knowledge is legitimate, prohibiting equivalent qualifications from other Member States or provinces and making the certificate the sole means of proof was disproportionate and a breach of Article 45 TFEU. #### 2.11.3 Las vs. PSA Antwerp Case This case involved a Flemish Decree that mandated employment contracts with an international character to be drafted in Dutch, on pain of nullity. Mr. Las, an employee whose contract was in English, argued that the Decree infringed the freedom of movement for workers under Article 45 TFEU. PSA Antwerp, the employer, contended that applying the Decree would impede cross-border employment. The ECJ reasoned that for cross-border employment contracts, the ability for parties to draft their contract in a language they both understand is essential for free and informed consent. Legislation that not only requires the official language but also disallows any other understood language by the parties is detrimental to the freedom of movement for workers. The Court concluded that the Flemish Decree infringed Article 45 TFEU by constituting an obstacle to the freedom of movement for workers that could not be justified by overriding reasons of public interest. > **Tip:** Understanding the distinction between the European Council, the Council of the EU (Council of Ministers), and the Council of Europe is crucial for correctly identifying their roles and competences. > **Tip:** Pay close attention to the voting procedures in the Council of the EU, particularly the difference between simple majority, qualified majority, and unanimity, as these significantly impact decision-making. > **Tip:** The Commission's monopoly on legislative initiative is a key executive power that drives the EU's policy-making process. > **Tip:** When analyzing cases related to free movement of workers, identify the specific rule or measure challenged, the alleged breach of Article 45 TFEU, and the justifications provided by the Member State or organization, evaluating if they are compatible with EU law and proportionate. --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Free movement of workers | A fundamental principle of the European Union that allows citizens of Member States to live, work, and seek employment in any other Member State under the same conditions as nationals of that state. | | ECJ (European Court of Justice) | The highest court of the European Union in respect of EU law, responsible for interpreting EU law and ensuring its equal application across all Member States. | | TFEU (Treaty on the Functioning of the European Union) | A foundational treaty of the European Union that outlines the functioning of the EU and its institutions, including provisions on free movement of persons, services, capital, and goods. | | Worker | Defined by the ECJ as a person who has a working relationship vis-à-vis another person, for a definite or indefinite duration, in return for financial compensation, under the supervision and authority of an employer. | | Economic activity | An activity that contributes to the production, distribution, or provision of goods or services, which falls within the scope of EU law when it is pursued for economic gain. | | Freedom of establishment | A principle of EU law that allows individuals and companies from one Member State to establish and conduct business in another Member State under the same conditions as nationals of that host state. | | Legitimate aim | A objective that is compatible with the objectives of the EU Treaties and serves a valid public interest, which can potentially justify restrictions on fundamental freedoms. | | Public interest | A concept referring to the welfare and common good of society, which can be invoked to justify certain measures that might otherwise restrict individual rights or freedoms. | | Principle of proportionality | A legal principle that requires that measures adopted by the EU or Member States must be appropriate and necessary to achieve their legitimate objectives, and must not go beyond what is needed to attain those objectives. | | European Parliament | The directly elected legislative body of the European Union, composed of representatives of EU citizens, with powers in legislation, budgetary matters, and scrutiny of other EU institutions. | | European Council | The institution of the EU that comprises the Heads of State or Government of the Member States, responsible for defining the EU's general political direction and priorities, but without legislative powers. | | Council of the EU (Council of Ministers) | The institution of the EU that represents the governments of the Member States, playing a key role in the legislative process alongside the European Parliament and adopting EU legislation. | | European Commission | The executive arm of the European Union, responsible for proposing legislation, enforcing EU law, managing the EU's day-to-day business, and representing the EU internationally. | | Qualified Majority Voting (QMV) | A voting system used in the Council of the EU where a decision is adopted if it is supported by at least 55% of the Member States, representing at least 65% of the EU population. | | Unanimity | A voting requirement where all Member States must agree for a decision to be adopted, typically reserved for highly sensitive policy areas. | | High Representative for Foreign Affairs and Security Policy | The EU's chief diplomat, responsible for leading the EU's Common Foreign and Security Policy and representing the EU on foreign policy matters. | | Ordinary legislative procedure | The primary legislative procedure in the EU, where the European Parliament and the Council of the EU jointly adopt legislation proposed by the European Commission. |