Chapter 23
FREE MOVEMENT OF WORKERS
Question 1
Which of the following persons, who have left a home Member State and reside in a host Member State, CANNOT be regarded as a worker within the meaning of Article 45 TFEU?
a. A drug addict who participates in a drug rehabilitation scheme for which its participants are paid
b. A fisherman who works approximately 10 hours per week and is paid only when caught fish are sold.
c. A person who has been looking for employment for six months but has not been successful.
a. This is the correct answer. In Case 344/87 Bettray, the ECJ held that participation in a drug rehabilitation scheme for which its participants were paid did not involve performance of economic activities and therefore was outside the scope of Article 45 TFEU.
b. This is an incorrect answer. The ECJ stressed in a number of cases that provided the activities performed are effective and genuine, a person should be considered as a worker even though such a person is not employed full time or receives pay lower then that for fulltime employment. In Case 3/87 Agegate, the ECJ held that fishermen paid only when caught fish were sold were considered as workers as they performed activities which were effective and genuine and of an economic nature.
c. This is an incorrect answer. A job seeker is regarded as a worker under Article 45 TFEU. Based on the judgment of the ECJ in Joined Cases C22/08 and C23/08 Vatsouras and Koupatantze all work seekers, who genuinely seek employment in a host Member State are workers within the meaning of Article 45 TFEU.
Question 2
Which of the following persons will be entitled to claim study finance in a host Member State?
a. John, a British national, who was employed as a trainee librarian in Belgium for nine months with a view to studying library science at the University of Liege. His work was a form of pre-university training as it was a pre-requisite for his admission to university. He would not have been employed by his employer if he had not already been accepted by the university.
b. Hans, a German national, who worked as a cook in France for 4 years and then left his work in order to study law at the University of Nice.
c. Anna, a Russian national is married to Jeremy, a Spanish national, with whom she lives in Germany. Anna worked as a nurse in Germany for 3 years and then left her employment in order to take a 3 year course in child nursing at the University of Berlin
a.This is an incorrect answer. John, although an EU worker, will not be entitled to study finance because his employment was merely ancillary to his studies. A similar situation occurred in Case 197/86 Brown.
b. This is an incorrect answer. Hans will not be entitled to a study grant because there was no connection between his previous work and the studies pursued.
c. This is the correct answer. Anna, as a wife of an EU national, is entitled to obtain the same social advantages as German nationals. As there is a link between her previous employment and the studies pursued by her she will be entitled to study finance in Germany despite the fact that she had become voluntarily unemployed.
Question 3
Which of the following legislation in force in the Republic of Ireland is in breach of Article 45 TFEU?
a. Legislation requiring that all teachers, irrespective of the courses they teach, who work in State schools in Ireland should be proficient in Gaelic (an official language of the Irish Republic) even though only a very limited number of Irish citizens speaks Gaelic.
b. Legislation limiting to10 percent the number of teachers in State schools in Ireland who are not citizens of Ireland. However, oral instructions were given by the Irish government to the appropriate national authorities not to apply the legislation to EU citizens.
c.Legislation providing that teachers employed in State schools in Ireland who had been recruited abroad should receive a separation allowance of €10 per day for the duration of their employment whilst teachers residing in Ireland, who had been entitled to a separation allowance at the time of their recruitment, should receive a separation allowance of €30 per day during thefirst two years of their employment.
a. This is an incorrect answer. Article 3(1) of Regulation 492/2011 allows a Member State to impose conditions "relating to linguistic knowledge required by reason of the nature of the post to be filled". Article 3(1) was relied upon by the Irish Government in Case379/87Groener in which the ECJ held that although knowledge of Gaelic was not required for the performance of the duties of teaching art in Ireland the requirement was not in breach of Article 3(1) of Regulation 492/2011 as it was a part of a national policy for the promotion of the national language and therefore constituted a means of expressing national identity and language in the Irish Republic. It was also non-discriminatory, and not disproportionate to the objective pursued.
b. This is the correct answer. Under Article 4 of Regulation 492/2011 Member States must not restrict the employment of EU migrant workers by number or percentage. In Case 167/73 Commission v France [Re French Merchant Seamen], the argument submitted by the French government that the requirement was not used in practice, as oral instructions were given to appropriate national authorities not to apply it, was rejected by the ECJ. The Court held that that non application of the requirement was a matter of grace, not of law, and thereby created uncertainty for all parties concerned.
c. This is an incorrect answer. Although Article 45(2) TFEU prohibits all forms of indirect discrimination which, by applying distinguishing criteria other than nationality (e.g. residence) have in practice the same discriminatory result, in certain circumstances indirect discrimination may be justified. This occurred in Case 152/73 Sotgiu v Deutsche Bundespost, in which the ECJ held that the difference in amount paid to different groups of workers could be objectively justified taking into account that one group of workers received an allowance temporarily while for the other group it was of unlimited duration.