Free Movement of Persons in Eu Law

1. Intro → four fundamental freedoms, EEC - purely economic based in the beginning. The very first law which began the free movement revolution was purely for economic reasons, to allow workers to move in order to fill employment gaps in European economies. And so article 45 was born. It enabled workers to move around the union and reside in order to work. The article was directly effective (Angonese) and so could be enforced both vertically and horizontally demonstrating its importance.

2. The meaning of "worker" was strictly construed originally as one who provides services under the direction of another for remuneration. Or more simply an employer and employee situation with pay (Lawrie-Blum). Article 45(4) provided for an exception to the free movement of workers, where a member state could employ nationals over foreign workers in "public service" jobs. This included far too great a spectrum of persons and so the commission issued a guidance in 1988 OJ c72/2 stating that public service jobs which would justify limiting the freedom of workers was only applicable to jobs which were "security sensitive", such as the army or the police. Therefore a canteen worker was not a public service exception (Schloz).

3. However, the economic basis of the article and freedom of workers failed to account for the fact that this law fundamentally affected human beings, and therefore there were social consequences which movement brought about. The law had to adapt to provide for the inevitable and therefore the law became more widely interpreted.

a. The definition of "worker" became less stringent as it did not matter how much money was being earned (Levin), and it was even accepted in one case that remuneration for services done could include simple board and lodgings in return for charity work in the case of Staymann. In addition, a worker who was seeking work was entitled to remain and try to find a job for six months after having been employed (Antonissen).

b. Workers were also entitled to a number of ancilliary rights with the right to move to work, including the right to social advantages in the member state on the same basis as nationals provided there was lawful residence as a moving worker. In addition the law made up for the disadvantage of moving by allowing the worker's family to reside with him. However, this is fairly strict as it only allows spouses or civil partners and dependents whether ascending or descending. Dependent children are those under 21, although over 21s can still be a dependent and the onus is on the worker to prove that the over 21 is dependent (Lebon). Furthermore, the right of the spouse to reside will end on the completetion of a divorce (Diatta).

c. The 1990s saw a major breakthrough in free movement law as the economic nexus began to splinter. Three directives were passed by the union which were to be implemented by MS. The so-called "playboy" directive 90/364 allowed those of independent means who were not workers, to move freely within member states. However, the individual had to have sufficient resources to avoid becoming a burden on the state and also have comprehensive health insurance. Similarly, students had the right to move freely under directive 93/96 as well as retired workers under directive 90/365. Those, just like the "play-boy" directive required the movers to have sufficient resources and comprehensive sickness insurance.

d. These directives were consolidated and clarified in the Citizens rights directive which laid out the citizens rights of non workers, as well as workers and the right to reside, remain and be treated equally with nationals provided that the individual did not burden the state and had health insurance.

e. The ECJ was faced with a number of cases involving the extent of equal treatment with nationals of member states. In the landmark case of Martinez Sala, a non-working Spanish national living in Germany was allowed child-raising allowance, even although technically she was burdening the state. The court interpreted the legislation and extended