Who is considered a "worker" within the European Union?

Workers and self-employed persons

Free movement of workers[72] within the Member States of the European Union has been long established, since the Treaty of Rome 1947. However, it is now enshrined in the Treaty on the Functioning of the European Union (hereinafter-TFEU) and in its Article 45(2) stating that ‘abolition of any discrimination based on nationality between workers of the Member States as regards employment’, and enable a person ‘stay in a Member State for the purpose of employment’ as per 45(3)(c)[73] states:

One of the requirements to reside freely in an EU Member State is to become employed or be self-employed in the host Member State of which the migrant is not a national. Thus, any EU Citizen shall be ‘assured of freedom both to enter another Member State in order to pursue an employed or self-employed activity and to reside there after having pursued such an activity’.[74]

There is no statutory definition of a ‘worker’ under EU law, where the meaning and all that it entails must be sought in the CJEU judgments. The status of ‘worker’ is broad and will not be outlined in detail for the purposes of this essay. Of great importance is the fact that once the status of a worker is established, the rights flowing thereunder are extensive.

In short, in order to qualify as a worker exercising a free movement right under Article 45 of the TFEU, one must undertake ‘effective and genuine work, under the direction of an employer, for which one receives remuneration’.[75] What constitutes ‘genuine work’ has always troubled the Courts.

In the case of Ninni-Orasche[76] it was stated that, the fact that the work had been carried out in the host Member State for the short period of time of two and a half months is irrelevant to precluding one of the ‘worker status’. In Genc[77], the ‘worker’ status was secured even where the hours of labour were limited and remuneration received was below the host Member State’s minimum subsistence wage. In Van Duyn[78] the CJEU held that Article 45 has direct effect and Member States are bound to recognise and uphold the rights of persons classified as ‘workers’. However, where the Member State wishes to restrict the free movement of a worker they must ‘take into account the personal conduct of the individual concerned [which may be considered] socially harmful’.[79] Member States are open to determine what they consider as socially harmful which gives rise to value-diversity and uncertainty when interpreting EU law.

Supplementary to Article 45 of the TFEU is the EU Regulation 492/2011[80] (it repeals the old legislation 1612/68EC[81]), which ensures that workers in Member States who invoke free movement rights and leave their home state receive the same treatment[82] as the nationals of the host Member State. Article 7(2) of Regulation 492/2011, grants migrant workers the right to access the same social advantages as nationals, in order to claim access to income support. Once the ‘worker’ status is determined, the person may legally reside within the host Member State and the rights and benefits flowing thereunder cannot be denied. These rights include but are not limited to access to housing[83] and social and tax advantages.[84]

A worker status will be upheld where a person can prove that they previously had a ‘sufficiently close connection’ to the labour market.[85]

Also, a Citizen will retain the status of a worker or self-employed if they meet the following conditions as stated under Article 7(3) of Directive 2004/38EC

(a) he/she is temporarily unable to work as a result of an illness or accident;

(b) he/she is involuntarily unemployed after having been employed for more than one year and has registered as a jobseeker;

(c) he/she is a jobseeker. In this case, the status of worker shall be retained for no less than six months;

d) he/she embarks on vocational training.

An example of the UK Courts upholding the status of a worker under Article 7(3) of 2004/38 Directive is in the case of Prix[86] but not in Zalewska,[87] even though both of the appellants in the cases were involuntarily unemployed as per Article 7(3)(b) of the Directive.

A brief outline of the case Prix is crucial following the approach of the Court to uphold the ‘worker’ status of the claimant. Ms Prix who is a French National had resided in the UK since July 2006, she was able to become employed shortly after she arrived up until August 2007. She undertook agency work for a couple of months and three months before she was due to give birth she resumed work and sought Income support. Her application for income support was rejected on the grounds that she lost her ‘right to reside’ in the United Kingdom. The Supreme Court requested for a preliminary ruling from the CJEU under Article 267 TFEU. The main question posed was whether;

Article 45 TFEU and Article 7 of Directive 2004/38, are to be interpreted as meaning that a woman who gives up work, or is seeking work, due to her physical constraints of the late stages of pregnancy retains the status of ‘worker’ within the meaning of those articles.[88]

The Court (First Chamber) replied by asserting:

Article 45 TFEU would permit the woman to retain the status of a worker, based on the facts of the case, provided she returns to work or finds another job within a reasonable period after the birth of her child.

Furthermore, the Court emphasised that as per Article16(3) of the Citizens Directive, Prix had a right of residence and Income support.

Article 16(3) of the Directive states that ‘Continuity of residence shall not be affected […] by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country’.

Thus, Prix retained the status of a worker.

The decision in Prix can be compared to the cases outlined in chapter four, on the basis of the similar facts, however, the outcomes have been drastically different.

Also, a worker may be subject to withdrawal from the host Member State if he or she becomes an ‘unreasonable burden’[89] on the host Member State, once they give up work or start taking benefits.

The rights of free movement in the capacity of a self-employed person are the same as for a ‘worker’ as per Citizens Directive 2004/38 EC Article (7)(1)(a). The CJEU in Roux[90] established that it made no difference whether an economic activity was classified as employed or self-employed and that ‘the same legal protection’ is afforded to both groups in relation to residence rights and therefore the classification of an economic activity is without significance.

[1] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 32 [2] F Pennings, ‘EU Citizenship: Access to Social Benefits in Other EU Member States’ (2012) 28(3) IJCLLIR 307 [3] Chalmers and Davies and Monti, European Union Law (4th edn, Cambridge University Press 2010) 447 [4] CEE countries consist of the following: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia who joined EU joined the EEC following enforcement of the Accession Treaty on 1st May 2004 (also referred to as EU10); whereas Romania and Bulgaria joined the EEC on 1st January 2007 (also referred to as EU2) [5] P Larkin, ‘The Limits to European Social Citizenship in the United Kingdom’ (2005) 68(3) MLR 435, 446 [6] Chalmers (n 3) 449 [7] A host Member State is defined as ‘the Member State to which a Union Citizen moves in order to exercise his/her right of free movement and residence’ as per article 2(3) of Directive 2004/38EC [8] Article 14 of Directive 2004/38EC [9] Emphasis added [10]M Dougan and E Spaventa, ‘Educating Rudy and the non-English patient: a double bill on residency rights under Article 18 EC’ (2003) 28(5) ELR 699 [11] K Puttick, ‘Paying their way? Contesting "Residence", self-sufficiency, and economic inactivity barriers to EEA nationals' social benefits: proportionality and discrimination’ (2011) 25(3) JIANL 280, 282 [12] A Wiesbrock, ‘Union Citizenship and the Redefinition of the "Internal Situations" Rule: The Implications of Zambrano’ (2011) 12(11) GLR 2077, 2081 [13] Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47 [14] The European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 [15] Austria, Belgium, Denmark, Finland, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom (also referred to as ‘EU10’ countries) [16] European Citizen Action Service, ‘Who’s afraid of the EU’s latest enlargement? The Impact of Bulgaria and Romania joining the Union on Free Movement of Persons’ (2008) Sixth Framework Research Programme Liberty and Security <http://www.libertysecurity.org/IMG/pdf_ECAS_REPORT_free_movement_in_2007.pdf> accessed 3 March 2015 [17] P Goodman, ‘Under this Government, we have what Gordon Brown called for during his – ‘British jobs for British workers’ (2013) Consevative Home <‘http://www.conservativehome.com/thetorydiary/2013/02/by-paul-goodmanthe-most-convincing-explanation-of-why-the-economys-rickety-condition-is-marching-in-step-with-booming-emplo.html> accessed 15 March 2015 [18] M Jouen and C Papant, ‘Social Europe in the throes of enlargement’ (2005) Policy Papers No 15 Notre Europe Etudes & Recherches <http://www.institutdelors.eu/media/policypaper15-en-jouen-palpant-europesocialandenlargement.pdf?pdf=ok > accessed 3 March 2015 [19] Ibid [20] V Mitsilgas ‘Free movement of workers, EU citizenship and the enlargement: the situation in the UK’ (2007) 21(3) JIANL 223, 225 [21] B Smith, ‘Eastern European immigrants 'overwhelming benefit UK economy’ (2013) The Telegraph <http://www.telegraph.co.uk/news/uknews/immigration/10484225/Eastern-European-immigrants-overwhelming-benefit-UK-economy.html> accessed 7 March 2015 [22] Ibid (n 4) on for full list of countries [23] See (n 15) for full list [24] See Article 24, Act of Accession [2003] OJ L236/33 refers to a series of Annexes that contain the details of the transitional arrangements in respect of each accession Member State. For example, in relation to Poland see Annex XII [2003] OJ L236/875 [25] S Currie, ‘Challenging the UK rules on the rights of EU8 workers’ (2009) 31(1) JSWFL 47, 48 [26] The Accession (Immigration and Worker Authorisation) Regulations 2006, s 6(1) [27] HM Revenue and Customs, ‘CBTM10070 - Residence and immigration: residence - right to reside in the UK’ (2015) <http://www.hmrc.gov.uk/manuals/cbtmanual/cbtm10070.htm> accessed 7 March 2015 [28] Ibid [29] Part II (Articles 18-25) of the Treaty on the Functioning of the European Union (TFEU) [30] Ibid (n 27) [31] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [32] K Puttick (n11) 284 [33] Article 4 of The European Parliament and Council Regulation 883/2004/EC of 29 April 2004 on the coordination of social security systems [2004] OJL 116 [34] E Guild and S Carrera and K Eisele, Social benefits and migration: A Contested relationship and policy challenge in the EU (Centre for European Policy Studies) (2013) 9 [35]Article 2 of The Treaty of Rome 1947 [36] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 [37] Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 [2009] 2 CMLR 3 [38] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 [39] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [40] K Puttick (n 11) 292 [41]C Barnard, The Substantive Law of the EU - The Four Freedoms (4th edn, Oxford University Press 2010) 223 [42] The Treaty on European Union (TEU) was signed in Maastricht on 7 February 1992 and came into force on 1 November 1993 [43] The European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 [44] A Wiesbrock, ‘Union Citizenship and the Redefinition of the "Internal Situations" Rule: The Implications of Zambrano’ (2011) 12(11) GLR 2077, 2081 [45] Case C-378/97 Wijsenbeek [1999] ECR I-6207, Opinion of A.G. Cosmas, paras 86 [46] S O'Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELR 68, 68 [47] Article 20 (1) of TFEU [48] Case C-212/06 Flemish Insurance [2008] ECR I-1683, para 33 [49] Case C-175/78 Saunders [1979] ECR I- 1129, para 11 [50] Case C-127/08 Metock v Minister for Justice [2008] ECR I - 6241, para 78 [51] This was implemented in the UK by the Immigration (EEA) Regulation 2006 (SI 2006/1003) [52] Article 1 of Directive 2004/38EC [53] Article 288 of the TFEU [54] Article 14(2) of Directive 2004/38EC [55] Case C-34/09 Ruiz Zambrano [2011], para 42 [56] K Puttick (n 11) 292 [57] Case C-209/03 Bidar [2005] ECR I-2119 [58] Ibid para 51 [59] Recital 23 of Directive 2004/38EC [60] Case C-85/96 Martínez Sala v Freistaat Bayern [1998] [61] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 115 [62] Article 24 of Directive 2004/38EC [63] Case C-406/04 De Cuyper v Office national de l’emploi [2006] para 42 [64] Ibid para 43 [65] Case C-145/09 Land Baden-Wurttemberg v Tsakouridis [2010] ECR I-11979, para 50 [66] Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I -2703, para 30 [67] Ibid 40 [68] R White, ‘Free movement, equal treatment, and Citizenship of the Union’ (2005) 54(4) ICLQ 885, 897 [69] Article 6(2) of 2004/38EC [70] Article 6(1) of Directive2004/38EC [71] Article 16(1) of Directive2004/38EC [72] Article 3(i) of Treaty of Rome 1947 [73] Ex Article 39 TEC [74] Case C-334/94 Commission v France – Registration of Vessels [1996] ECR I-1307, para 21 [75] Case C-66/85 Lawrie-Blum [1986] ECR I-2121; see also Case C-196/87 Steymann [1988] ECR I-6159 [76] Case C-413/01 Ninni-Orasche [2003] ECR I-13187, para 32 [77]Case C-14/09 Genc v Land Berlin Case [2010] 2 CMLR 44 [78] Case C-41/71 Van Duyn v Home Office [1971] ECR I -1337, 1352 [79] Ibid [80] REGULATION (EU) No 492/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2011 on freedom of movement for workers within the Union (codification) (Text with EEA relevance) [2011] OJ L141 [81] The European Parliament and Council Regulation 1612/68 on freedom of movement for workers within the Community [1968] OJ L257/2 [82] Article 7(1) workers regulation 492/2011 [83] Article 9 of workers regulation 492/2011EC [84] Ibid, Article 7(2) [85] Ibid [86] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [87] Case Analysed in-depth in Chapter 5 [88] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448, para 24 [89] Article 14 of Directive 2004/38EC [90] Case C-363/89 Danielle Roux v Belgian State [1991] ECR I-273, 16 [91] Article 3(2)(a) of 2004/38EC [92] Ibid [93] Ibid, Article 24 [94] Case C-34/09 Ruiz Zambrano [2011] ECR I-01177 [95] A TCN is someone who is not an EU Citizen [96] Case C-34/09 Ruiz Zambrano [2011] ECR I-01177, para 44 [97] Article 7(3)(b) of Directive 2004/38EC [98] Article 45(2) of TFEU [99] Article 24(2) of Directive 2004/38EC [100] Ibid, Article 14(4)(b) [101] Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I -2703 [102] Ibid, para 63 [103] Case C-209/03 R(Bidar) v Ealing London Borough Council[2005] QB 812 [104] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR 1-7091 [105] Ibid, para 94 [106] Article 8(4) of Directive 2004/38EC [107] Article 8(4) of Directive 2004/38EC [108] Ibid, Article 14(3) [109] Ibid [110] Recital 23 of Directive 2004/38EC [111] Ibid, Article 14 [112] Ibid, Recital 16 [113] P Minderhoud, ‘Legislative Comment-Directive 2004/38 and access to social assistance benefits’ [2011] 18(4) JSSL 153, 156 [114] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [115] Ibid, 643 [116] Ibid,663 [117] Ibid, 663 [118] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 32 [119] Ibid, 652 [120] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [121] Ibid, 655 [122] Recital 37 of 883/2004EC [123] Rectal 1 of 883/2004EC [124] Ibid [125] Ibid, Recital 24 [126] Case C-456/02 Trojani v Centre publique d'Aide sociale de Bruxelles [2004] ECR I-7573 [127] Ibid para 37 [128] K Puttick (n 11) 284 [129] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 135 [130] Case C-22/08 Vatsouras v ARGE Nürnberg [2009] ECR I-04585 [131] Case C-140/12 Pensionsversicherungsanstalt v Brey [2014] ECR 00000 [132] Ibid, para 77 [133] Ibid, para 80 [134] Article 14 of Directive 2004/38EC [135] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 43 [136] C-140/12 Pensionsversicherungsanstalt v Brey [2014] paras 39 [137] Ibid, para 77 [138] Strict conditions are regulated by Title III, Chapter 6, Articles 61-65 of Regulation 883/2004EC [139] Case C-333/13 Dano v Leipzig [2014] [140] Ibid, para 78 [141] Recital 37 of Regulation 883/2004EC [142] Lenaerts and Heremans, ‘Contours of a European Social Union in the Case-Law of the European Court of Justice’ (2006) 2 Eur. Consititut. Law Rev. 101. [143] K Puttick (n 11) 292 [144] Regulation 6(1) of Immigration (European Economic Area) Regulations 2006 ‘worker, self-employed, jobseeker, self-sufficient person or student’ [145] Model example is given in Income Support (General) Regulations 1987 21AA where a list of ‘persons not from abroad’ [146] Article 13(3)(b) of Immigration (European Economic Area) Regulations 2006 [147] Accession (Immigration and Worker Registration) Regulations 2004 (Introductory text) [148] S Currie (n 25) 53 [149] K Puttick (n 11) 282 [150] P Larkin, ‘A policy of inconsistency and hypocrisy: United Kingdom social security policy and European Citizenship’ (2010) 31(1) JSWFL 33, 35 [151] Ibid, 39 [152] Ibid, 37 [153] Ibid [154] Ibid [155] S Currie (n 25) 56 [156] P Larkin, (n150) 42 [157] For the full accurate list please see paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987 [158] P Minderhoud ‘Legislative Comment-Directive 2004/38 and access to social assistance benefits’ [2011] 18(4) JSSL 153, 156 [159] Nessa v Chief Adjudication Officer (1999) 4 All ER [160] P Larkin, (n150) 37 [161] Trojani para 18 [162] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783, para 61 [163] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 para 46 [164] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573 [165] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573, para 71 [166] Case C-333/13 Dano v Leipzig [2014], para 76 [167] EU Commission Notice IP/10/1418 Free Movement of Workers: Commission Requests UK to End Discrimination on other Nationals' Right to Reside as Workers (Brussels: 28 October 2010) [168] Puttick (n 11) 292 [169] Accession Monitoring Report 2004-2008 (Home Office/UKBA et al, 2008) p 23 [170] Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/38/EC on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States', Brussels 10.12.09 COM (2008) 840 Final [171] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ] ECR 1-7091 [172] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 201 [173] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24, para 69 [174] Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 [2009] 2 CMLR 3 [175] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [176] Section 17 of Schedule of the Income Support (General) Regulations 1987 [177] Section 5 of Immigration (European Economic Area) Regulations 2000. [178] Article 16(3) of Directive 2004/38EC [179] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 [180] Regulation 2(4) of Accession (Immigration and Worker Registration) Regulations 2004 [181] Section 5 of The Accession (Immigration and Worker Registration) Regulations 2004 [182] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 para 36 [183] Ibid para 39 [184] Ibid para 44 [185] Ibid para 44 [186]Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 Para 79 [187] Ibid para 29 [188] Ibid para 49-56 [189] Ibid para 48 [190] S Currie (n 25) 54 [191] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783 [192] SI 2002/1792 [193] Ibid reg (4) that ‘A person is not to be treated as not in Great Britain if he is - (a) a worker … (b) a self-employed person…’ and is otherwise within the scope of the directive. [194] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783 para 20 [195] Regulation 2 of 2002 states A person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, [196] Case C-73/08 Bressol v Gouvernement de la Communaute Francaise [2010] 3 CMLR 20 [197] Ibid para 60-62 [198] Ibid para 104 [199] Ibid para 103 [200] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573 [201] K Puttick (n 11) 292 [202] K Puttick (n 11) 292 [203] K Puttick (n 11) 292 [204] S Currie (n 25) 56 [205] S Currie (n 25) 57 [206] S Currie (n 25) 57 [207] S Currie (n 25) 52 [208] Case C-53/81 Levin [1982] ECR-I 1035 [209] S Currie ‘”Free" movers? The post-accession experience of accession-8 migrant workers in the UK’ (2006) 31(2) ELR 207, 226 [210] K Puttick (n 11) 284 [211] Article 4 of 883/2004EC [212] Article 2 of The Treaty of Rome 1947 [213] Case C-333/13 Dano v Leipzig [2014], para 74 [214] Case C-34/09 Ruiz Zambrano [2011], Opion of AG Eleanor Sharpston para 127-129 [215] K Puttick (n 11) 292 [216] Accession Monitoring Report 2004-2008 (Home Office/UKBA et al, 2008