EU LAW L19

1. Free movement of workers secured within the EU

2. Abolition of discrimination based on nationality

3. It shall entail right to (subject to limitations justified on grounds of public policy, public security or public health)
-accept employment offers actually made
-move freely within the territory of MS for this purpose
-to stay in MS for purpose of employment in accordance with that states laws
-to remain in the territory of MS after having been employed subject to conditions

4. The provisions of this article shall not apply to employment in the public service

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Union and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.

3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.

(German family where father ceased to be a worker could remain in the United Kingdom by virtue of being citizens of the Union under Article 18 EC).

The court said:
A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.

(Baby born in Republic of Ireland was a citizen of the Union, and so her parents could remain in the United Kingdom to make her right to reside under Article 18 EC an effective right).

The Court said:
In circumstances like those of the main proceedings, Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.

Articles 48 to 51 of the Treaty, by the very fact of establishing freedom of movement for ‘workers’, have given Community scope to this term . If the definition of this term were a matter within the competence of national law, it would therefore be possible for each Member State to modify the meaning of the concept of ‘migrant worker’ and to eliminate at will the protection afforded by the Treaty to certain categories of person . Moreover nothing in Articles 48 to 51 of the Treaty leads to the conclusion that these provisions have left the definiti on of the term ‘worker’ to national legislation . Articles 48 to 51 would therefore be deprived of all effect and the above-mentioned objectives of the Treaty would be frustrated if the meaning of such a term could be unilaterally fixed and modified by national law . The concept of ' workers ' in the said articles does not therefore relate to national law, but to Community law .

(trainee teacher in Germany)
P, a British subject, was a trainee teacher in West Germany. Her application for admission to the preparatory service at a teachers' training college was refused on the ground that entrants were temporary civil servants, and posts in the civil service were only open to German nationals. The German courts held that a trainee teacher was not a "worker" within Art.48(1) of the EEC Treaty, and that even if he was, the exemption of public servants in Art.48(4) applied.
Held, on the reference of the case to the European Court of Justice by the federal administrative court, that, (1) "worker" in Art.48(1) should be interpreted broadly, ie one person performing services and under the direction of another person for remuneration, which included a trainee teacher, and (2); Art.48(4) should be narrowly construed as including only what was necessary to safeguard the interests of the state, ie, not a trainee teacher

(hippie in the Netherlands working for pocket money)
S, a German, joined a religious sect in Holland known as the Bhagwan community. He did plumbing work and other commercial activities for that community. The latter provided for his material needs. He was refused a residence permit in Holland in order to take up employment there. His appeal against such refusal was dismissed on the grounds, inter alia, that he was not in employment and therefore did not enjoy the status of a privileged EEC national within the meaning of Dutch law on foreign nationals. The State Council asked the European Court under Treaty of Rome 1957 Art.177 for a preliminary ruling.
Held, that (1) Art.2 EEC meant that activities carried out by members of a religious, spiritual or philosophical community, in the context of commercial activities carried out by that community, constituted economic activities to the extent to which benefits given by the community to its members might be regarded as indirect consideration for real and effective activities; (2) Art.59 and Art. 60 did not cover the position of a national of an EEC State who moved to another EEC State and there established his main residence with a view to providing or receiving services for an indefinite time. Such activities might be within the ambit of Arts. 48-58 EEC depending on the facts of the particular case.

(part-time worker in the Netherlands)

Here an English woman had married and had been supported by a South African. She had lived in the Netherlands with her husband and had taken part-time work as a hotel chambermaid.
Held, that despite the fact that her earnings were below the minimum subsistence level laid down by Dutch legislation, she was a worker within the meaning of Art.48 EEC. Her earnings level was thus irrelevant. It was only necessary that her work, whether full-time or part-time, was bona fide and not so minimal that it was disregarded. Also disregarded for the purposes of qualification under this EEC legislation were the motives she may or may not have had for accepting such work.

The court said:
It should however be stated that whilst part-time employment is not excluded from the field of application of the rule of freedom of movement for workers, those rules cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. It follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of the Treaty as a whole that those rules guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity.

(piano teacher who needed social security to top up his income to subsistence level)

Mr Kempf, a German, came to Holland and worked as a part-time music teacher. He received social security payments from Dutch public funds. He applied for a residence permit in order "to pursue an activity as an employed person" in Holland. It was refused because, inter alia, he did not qualify as a favoured EEC citizen within the meaning of Dutch immigration legislation as he had had recourse to public funds in Holland and was therefore unable to meet his needs out of the income received from his employment. The Raad van State asked the European Court under the Treaty of Rome 1957, Art.177 for a preliminary ruling on the interpretation of EEC law on the free movement of workers.
Held, that an EEC national who pursues within another EEC State work, which is effective and genuine part-time employment, cannot be excluded from the provisions of EEC law on the freedom of movement of workers merely because his income therefrom is below the level of the minimum means of subsistence and he seeks to supplement it by other lawful means of subsistence. It is irrelevant whether the supplementary income comes from property or from the employment of a relative or from public funds. Such a person is a "worker" within the broad interpretation given to that word by EEC law.

Where a national of a Member State pursues within the territory of another Member State by way of employment activities which may in themselves be regarded as effective and genuine work, the fact that he claims financial assistance payable out of the public funds of the latter Member State in order to supplement the income he receives from those activities does not exclude him from the provisions of Community law relating to freedom of movement for workers.

(part-time waitress with a contract for 60 hours of work)

R, a French national, settled in the Netherlands in 1985 without registering at the office for control of aliens or obtaining a residence permit. In March 1986, she entered into an employment contract under which she performed 60 hours of service as a waitress. On August 1, 1986, she began a full-time course in the plastic arts. She applied to the Netherlands Ministry of Education and Science for a grant to fund her studies, but the application was rejected on the ground that she could not be treated as a Netherlands national since she did not hold a residence permit.

The court said:
1. A worker employed under an open contract is not precluded by reason of his conditions of employment from being regarded as a worker within the meaning of Article 48 of the EEC Treaty; 2. The duration of the activities pursued by the person concerned is a factor which may be taken into account by the national courts when assessing whether those activities are effective and genuine or whether, on the contrary, they are on such a small scale as to be purely marginal and ancillary; 3. In assessing whether a person is a worker, account should be taken of all the occupational activities which the person concerned has pursued within the territory of the host Member State but not the activities which he has pursued elsewhere in the Community; 4. A migrant worker who leaves his job and begins a course of full-time study which has no link with his previous occupational activities does not retain his status as a migrant worker for the purposes of Article 48 of the EEC Treaty, except in the case of a migrant worker who becomes involuntarily unemployed … .

(sheltered work for people with special needs)

A German national sought a residence permit in the Netherlands, after having been engaged there in a rehabilitation scheme for persons with mental and physical incapacities. He appealed against the refusal of the authorities to provided him with such a permit, arguing that as a worker he was entitled to a residence permit under Art.48.
Held, that the term "worker" has a community definition which does not extend to cover those who are engaged in rehabilitation schemes which are aimed at encouraging them to develop such skills as would enable them to leave the scheme and take up proper employment.

Article 48( ) of the EEC Treaty must be interpreted as meaning that a national of a Member State employed in another Member State under a scheme such as that established under the Social Employment Law, in which the activities carried out are merely a means of rehabilitation or reintegration, cannot on that basis alone be regarded as a worker for the purposes of Community law.

(worker who gave up work to undertake vocational training)

N, an Italian national, was married to an Austrian national. She was granted a residency permit in Austria. Eighteen months later, she worked for two and a half months under a fixed term contract. Three weeks after the contract ended, she sat an examination for a secondary school diploma that allowed her to attend university. After unsuccessfully seeking further employment, she enrolled at a university. She unsuccessfully applied for financial assistance for her studies and her appeals to B and the Constitutional Court were refused and the matter was referred to the Administrative Court.
Held, giving a preliminary ruling, that (1) the fact that a national of one Member State obtained fixed term work in another Member State could confer the status of worker under Art.39. Neither the employee's conduct prior to or after the employment nor the duration of residence in the host Member State was relevant to that assessment. It was for the national court to determine the validity of the employment activity, and (2) the end of a fixed term contract did not automatically mean that the employee was voluntarily unemployed, particularly where the employee had no influence over the employment term or the type of contract. On that issue, the national court could take into account practices within a particular economic sector; the chances of finding employment; and the interest in entering only a fixed term contract and the possibility of its renewal. Factors such as N's urgency in obtaining her diploma to study and find work, the nature and level of work sought, and her reasons for moving to Austria and her lawful residency there could be relevant to the issue of whether her sole aim was to obtain financial assistance for her studies.

(French national with criminal convictions prosecuted in Belgium for illegal entry claims to be looking for work).

The case involved the powers of the Belgian Government to deport an alien, one Royer, who was found by the Belgian authorities to be "a danger to public order" and who had failed to comply with national rules on the control of aliens.

The Court observed that there was a right to look for work arising under what is now Article 39 EC, and noted: 31. … the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the Treaty - in particular to look for or pursue an occupation or activities as employed or self-employed persons, or to rejoin their spouse or family - is a right conferred directly by the Treaty , or, as the case may be, by the provisions adopted for its implementation.

T had been resident in Germany since 1960 where, until October 1978, he pursued various occupations as an employee. He had been unemployed since then and, from September 1981, had been paid allowances by the social services. At the time of the Greek accession to the European Community, he was a German residence permit holder which allowed him to work. In December 1981 he applied for an extension of that permit, which was refused by decision of the Landeshauptstadt Stuttgart on August 1, 1986. That decision was taken after T's application for invalidity benefit was definitively dismissed in 1983 on the ground that T was not unfit to work.

(worker in United Kingdom challenges attempts to remove him after six months as a work seeker)


A, a Belgian national who had entered the UK in 1984 to seek work, appealed against a deportation order claiming that he was entitled to the protection afforded by EEC provisions on community workers. Following the failure of his appeal, A applied for judicial review and the High Court made reference to the European Court to establish whether domestic legislation of a member state specifying that a national of another member state might be required to leave if he had not found work after six months, was contrary to the provisions governing the free movement of workers.
Held: The national rule specifying a six month time limit did not contravene provisions for the free movement of workers contained in the Treaty of Rome 1957 Art.48; and Council Regulation 1612/68. The period was sufficient to enable nationals of other member states to seek and take up employment opportunities commensurate with their qualifications. However, a worker could not be required to leave if he could produce evidence that he had genuine chances of being engaged.