Territorial disputes: Brexit (15) [Post 215]

Brexit, European Union Law and Free movement of Persons


So far, the posts related to Brexit in the context of this blog series TERRITORIAL DISPUTES introduced basic elements in relation to the European Union. We presented the relationship between national law and international law, and in particular European Union law as a frame of reference for all Member States (including the United Kingdom and, consequently, Northern Ireland). 

Until now, the posts focused on European Union law and the fundamental freedoms that the United Kingdom (and therefore, Northern Ireland) will leave behind after Brexit. After introducing very briefly the four fundamental freedoms the posts focused on free movement of persons and European Union citizenship. The following posts will introduce free movement of persons, workers, and social advantages (including the highly controversial and usually misunderstood issue about benefits).

Key European Union Treaty Law Articles

Today, we highlight the key European Union treaty law articles related to “workers.” Thereafter, next week the posts will refer to secondary legislation and some relevant European Court of Justice judgments.

Art. 45 (1) TFEU: EU workers able to enjoy right to free movement.Art. 45 (2) TFEU: includes abolition of discrimination based on nationality between workers of Member States in relation to employment, remuneration and other conditions of work.Art. 45 (3) TFEU: comprises right to a) accept offers of employment; b) move freely within territory of a Member State for purpose; stay in a Member State for purpose of employment; d) remain in Member State after having been employed.

Art. 49 TFEU: “Restrictions on the freedom of establishment of nationals of a Member State in the territory of another shall be prohibited.”It involves:(a)  The ability to take up & pursue activities as self-employed  person under conditions laid down for own nationals (exercised by natural persons).(b) The ability to set up & manage companies/firms under conditions laid down for own nationals (exercised by natural & legal persons).(c) The ability to set up agencies, branches or subsidiaries without restriction (exercised by legal persons).

Art. 56 TFEU: prohibition of restrictions on freedom to provide services by individuals in Member States other than that in which they are established. Note the distinction between freedom of establishment (permanent base in host Member State) and freedom to provide services (economic activity for temporary period).  The right of establishment under art. 49 TFEU relates to setting up of permanent base in host Member State. The right to provide services relates to carrying out of economic activity for temporary period where provider has no permanent base. 

Next week, the post will introduce relevant judgements by the European Court of Justice.

Friday 1st March 2019 

Jorge Emilio Núñez

Twitter: @London1701

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