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Summary: Ws5 Free Movement Of Workers - Right Of Entry And To Reside (Article 45(1))

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Read the summary and the most important questions on WS5 Free Movement of Workers - Right of Entry and to Reside (Article 45(1))

  • 1 STEP 1: DEFINE the relevant treaty article and whether the individual falls within the definition of a 'worker'?

  • 1.1 Relevant treaty provisions - article 45

  • What does Article 45(1) TFEU guarantee workers of the EU?

    Article 45 guarantees the free movement of workers within the EU.
  • 2 STEP 2: What is a 'worker' under Article 45

    This is a preview. There are 1 more flashcards available for chapter 2
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  • 2.1 Worker - 3 part test (Lawrie-Blum)

  • Although the TFEU does not define a 'worker', explain the three part-test in (Lawrie-Blum) which defines a 'worker'?

    • Perform services for another person
    • Under the control of that person
    • Receives remuneration
  • 2.2 Job-seekers

  • Does a person seeking work come within the definition of a 'worker' under art. 45? What did the ECJ rule in (ex p Antoniseen)?

    Art. 45 has been extended to include job-seekers.
  • Under Article 6(1) of the Directive 2004/38, how long can a Union citizen take up residence in another MS and are they expected to find employment or carry out the economic activity during this period?

    • All EU citizens have a right of residence of up to 3 months in other MSs
    • No need to carry out an economic activity during this period.
  • Under Article 14(4)(b) of the Directive 2004/38, can an EU citizen be deported whilst seeking employment?

    An EU citizen cannot be deported if they are still looking for work and have a genuine chance of getting it.
  • 2.3 Part-time workers

  • Explain the type of work that must be completed in order for part-time workers to be considered 'workers' (Levin)?

    The work is 'effective and genuine' and not 'marginal and ancillary'.
  • Explain why the part-time music teacher in (Kempf) qualified as a 'worker'? Did state benefits impact this?

    Kempf, a German national, was a part-time music teacher who applied for state benefits as his income was below subsistence level. The ECJ held Kempf was still a 'worker' even if his income was supplemented by other lawful means such as state benefits.
  • 2.4 Unpaid religious workers

  • Explain why the unpaid religious worker in (Steymann) was considered a 'worker' under Article 45?

    Facts: A German national was a member of a religious community in the Netherlands and carried out various unpaid activities.

    Judgement: the ECJ held that:

    • unpaid religious workers were 'workers' because they contributed to the community's economic activities
    • received benefits which acted as an 'indirect wage'.
  • 2.5 Working as part of a drug-rehabilitation programme is not work!

  • Explain why a drug addict undertaking therapeutic work as part of a drug-rehabilitation programme was not considered a 'worker' in (Bettray)?

    His work was part of the rehabilitation programme. The scheme was to benefit him and did not carry out 'genuine' economic activity.
  • 3 STEP 3: If an EU national, what rights can they exercise in terms of entry and residence in a MS (workers)

  • 3.1 Identify relevant primary legislation = Article 45

  • Explain what rights are included in art. 45(3) and is the EU national allowed to stay while working?

    • Includes rights to 'move freely within the territory of MSs'
    • Includes the right to 'stay' in a host state while working and 'remain' thereafter 
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