The Court of Justice of the European Union, Free Movement of People and Workers
This week the posts refer to European Union law and the concept of “worker.” Yesterday, the post introduced key European Union treaty law articles. Today the focus will be on the interpretation of the concept of “worker” by the European Court of Justice.The TFEU does not define the concept of “worker.”
TFEU The relevant secondary legislation follows a similar fashion. For example, the Regulation 1612/68 E.C. art.1 (1) refers to “worker” as a national of a Member State and the Directive 2004/38 E.C. art.7 (1) characterized a “worker” as a Union citizen.
Relevant ECJ case law
a) “Worker” is a Union concept and has autonomous Union meaning.That is because “if the definition of this term were a matter for the competence of national law, it would therefore be possible for each Member State to modify the meaning of the concept of “migrant worker.”
an individual is a “worker” if he/she:a) Performs a service of economic value.b) Under direction of another.c) In return for measure of remuneration.
a “worker”must be engaged in a “genuine and effective economic activity.” “Work” must not be “marginal and purely ancillary.” Whether the test is satisfied is a matter for the respective national court.
Unger (75/63), Lawrie-Blum (66/85) and Levin (53/81) are the crucial judgments in which the European Court of Justice defines and characterizes the Union concept of “worker.” There are other judgments that are relevant to specific situations. For example:
an individual is still a “worker” if he/she performs a “genuine and effective” economic activity even though earned less than the minimum level and sought to supplement his/her income by State benefits.
an individual who performs various jobs for approximately 30 hours per week as part of personal socio-occupational reintegration programme in return for board, lodging and “pocket money.”It is up to national court to decide whether work constitutes a “real and effective” economic activity.
The duration of economic activity irrelevant. For example, zero hours’ contract. The nature of work, rather than extent, is the determining factor.
There are many other judgments by the European Court of Justice relevant to the concept of “worker” and particular situations. This post only intended to highlight the fact that the concept of “worker” is not part of the European Union legislation but jurisprudential creation. Therefore, the concept itself depends upon interpretation (at times narrow, at times broad). Tomorrow, the post will present secondary legislation relevant to the condition of “worker.”
NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.
NEXT POST: European Union Law, Free Movement of People and Workers: Jobseekers.
Tuesday 12th May 2020
Dr Jorge Emilio Núñez