Hoesktra
Worker is an EU concept and not determined by national employment law
Worker definition
“effective and genuine work”
- excludes activités on such a small scale as to be regarded MARGINALLY and ANCILLARY
Meeusen v Hoofddirectie
spouse can be employed by spouse as a worker
Levin
part time, low pay (less than min.wage) and no economic independence (used saving)
STILL WORKER
workers can supplement income with private sources
Kempf
part time, less than min, wage, and applied for social assistance
still WORKER
Steymann
paid in kind (food and accommodation)
STILL WORKER - as long as work would conventionally be paid for with money
ex p. antonissen
art.45 - incl job seekers
- but no indefinite right
- this case said 6 months (after, possible if “genuine chance of being engaged”)
- citizen directive shortened it to 3 months
Collins
job seekers treated differently
- no entitlement to tax and social advantages
Lawrie-Blum
1) “remuneration”
2) “economic value”
3) “under direction of a person”
here preparatory service stage of teacher training - service was of economic value for pay
- less than normal salary but that’s irrelevant
Motive of worker? (General rule)
Irrelevant as long as work is genuine and not marginal
Motive of worker (exception)
Bettray
- purpose was crucial to ECJ decision
- main purpose: rehabilitation
- no genuine economic need
Trojani
- service needs to be “capable of being regarded as forming part of normal labour market”
- this was reintegration but person was unable to work for a long time
Saunders
If no exercise of FM then it is in principle outside the ambit of treaty rules
Terhoeve
if C employed in another MS and returned to home MS = exception
can’t be discriminated against for working in another MS
Marsman v Rosskamp
National rules confined legal protection against dismissal for seriously disabled workers to NATIONALS
- obviously direct discrimination
Com v Italy (security work)
private security work only legally carried out by italian security firms employing italian nationals
- DIRECT DISCRMINATION
Com v French Republic
French law required proportion of crew to be French nationality
- DIRECT DISCRIMINATION
Schiebel
Austria rule - company can only trade military weapons if managing partner was Austrian
DIRECT DISCRIMINATION
- no justification
- not proportionate or necessary
O’Flynn
indirect discrimination - show:
1) not necessary to prove national measure affects higher proportion of foreign workers
2) just show measure was “intrinsically liable” to affect migrant workers more than nationals
Groener
there may be justifications for indirect discrimination
- here Dutch teacher failed Irish language test
- test is justified
- Irish language not to die
Calliope Schoning-Kougebetapoulou
doctor experience in another MS does not count towards experience for calculating salary on experience
- not justified
- manifestly worked to detriment of migrant workers
Bosman
obstacles to access to employment market (even if not discriminatory) can count as restricting FMOW
- football transfer system
- Belgium FC prevented footballer securing employment in France FC (system applies equally to players internally, nationality irrelevant)
BREACH - OBSTACLE TO FMOW
Volker Graf
RULE: compensation on termination of employment not available to workers who voluntarily ended employment
ECJ reiterated Bosman
- but no breach on facts
- dependent on hypothetical and future event
- too uncertain and indirect to breach art.45
Weigel
negative tax consequences for individual who moves from one MS to another (host MS = higher taxes)
- NO breach; no discrimination
- does not place individual under any greater disadvantage than those already resident
Com v Belgium (public service exception)
art.45(4) permits MS to reserve for nationals posts which would REQUIRE:
A SPECIFIC BOND OF ALLEGIANCE AND MUTUALITY OF RIGHTS AND DUTIES BETWEEN state and employee
