Seminar 2 of the Course European Law (2016/2017), Utrecht University

Week 2

Free movement of workers and persons & EU citizenship

Seminar questions

Question 1

1. What is meant by the concept of a worker within the meaning of Article 45 TFEU? What are the two main elements of the activity performed by the migrant worker?

Answer to question 1a:

According to the case Lawry Blum, par. 12. The term ‘worker’ covers ‘’any person performing for remuneration work the nature of which is not determined by himself for and under the control of another, regardless of the legal nature of the employment relationship’’.

The two main elements are therefore: remuneration and work in subordination. For a certain period of time, a person performs services for and under the direction of another person in return for which he or she receives remuneration (par 16).

2. What protection is given to a worker by Article 45 TFEU?

Answer to question 1b:

At first, there is a freedom of movement for workers within the European Union, which means they should be able to move freely to work in other Member States. Secondly, there is a prohibition of discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, under article 45 (2) TFEU.

3. Can a worker rely on Article 45 TFEU against a private employer?  

Answer to question 1c:

Yes, this is possible. Article 45 TFEU is not applicable when there is no cross-border element, or when the employee works in the public service (art. 45 (4) TFEU). This is an exception on the article. Under all other circumstances,  the article is applicable. According to the Bosman case, par. 93: the Article has direct effect. This means that the worker can invoke the article. A worker can rely on Article 45 against a private employer, this is direct horizontal effect: the worker can invoke article 45 TFEU against the employer. When a worker wants to invoke article 45 TFEU against the Host Member State, this is vertical direct effect.

Question 2

The lighthouse guard of the lighthouse ‘Vuurlicht’ on the Dutch island Vlieland will soon retire. The Ministry of Transport and Public Works, which is responsible for lighthouses, has recently placed an... Interested? Read the instructions below in order to read the full content of this page.