Eu Citizenship and Related Rights - Week 10 Review of Free movement of workers - Free movement of workers - set out in Article 45 TFEU - Important to understand who a worker is - definition is based on EU law not individual law of the Member state - Exception for public service article 45 (4) TFEU Implementing legislation - Directive 2004/38 citizens' right directive - Regulation 492/2011 (which repealed and replaced regulation 1612/68) concerning equal access to employment and housing, education, and other benefits. - Regulation 883/2004 ensures workers who are entitles to certain benefits enjoy them in the host MS as well as on return home - Directive 2014/2011 facilitates unform application of rights set forth in article 25 TFEU and by articles 1-10 of reg 492/2011 Issue of discrimination Direct Discrimination - Occurs when a national law applies different rules depending on the nationality of the individual (ie citizen of home state or migrant) - Can potentially only be (possibly) justified by reference to the derogations set out by the treaty - public policy, public security, or public health (article 45(3)) Indirect discrimination - Occurs when a national rule is seemingly neutral on its face but is more difficult for non- nationals to comply with - Will breach article 45 TFEU unless objectively justified by a legitimate aim or by one of the derogations set out in Article 45 (3) TFEU Clean Car Case C - 350/96 26 by its second question, the national court wishes to ascertain, in substance, whether article 48 of the treaty precludes a member state from providing that the owner of an undertaking exercising a trade on the territory of that state may not appoint as manager a person not resident there 28. it is true that a provision (of the national law) applies without regard to the nationality of the person to be appointed as manager 29. However, as the Court has already held (see, inter alia, Case C-279/93 FinanzamtKöln-Altstadt v Schumacker [1995] ECR I-225, paragraph 28), national rules under which a distinction is drawn on the
basis of residence are liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreigners. 31. It would be otherwise only if the imposition of such a residence requirement were based on objective considerations independent of the nationality of the employees concerned and proportionate to a legitimate aim pursued by the national law (see,to that effect, Case C-15/96 Schöning-Kougebetopoulou v Freie und HansestadtHamburg [1998] ECR I-0000, paragraph 21). 34 In that regard, the residence requirement must be held either to be inappropriate for ensuring that the aim pursued is achieved or to go beyond what is necessary for that purpose. Comm v Greece Case C-187/96 19 Unless it is objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there