← The hardest concepts in European Union law
In one breath
Workers who are nationals of a Member State have the right to take up work in another Member State on the same terms as its own nationals, and Union citizenship builds on that to give nationals of every Member State a right to move and reside, subject to limits. “Worker” is a Union concept, and the exceptions are read narrowly.
The picture
The commuter’s pass that became a resident’s card
A rail company issues a commuter’s pass to people who work in the neighbouring town. It entitles them to ride and to be treated like local commuters. Over time the company decides that every pass-holder belongs to the wider travelling community, with a card that lets you stay in a town even when you are not commuting, subject to conditions such as being able to pay your way.
The Treaty began with the pass. Workers could move to take up employment and could not be treated worse than nationals in pay, conditions or social advantages. Union citizenship, added later, became the card: every national of a Member State is also a citizen of the Union, with a right to move and reside, which the Court of Justice described as destined to be the fundamental status of nationals of the Member States. The card has fine print, and the Treaties and implementing measures set conditions and limits.
Where the picture stops working
A pass can be withdrawn on a company’s whim. Union rights can be limited only on grounds such as public policy, public security or public health, which the Court construes narrowly, and the public-service exception covers only posts involving the exercise of public authority. And a card does not make the town yours: the rules generally require a cross-border element, so a citizen in a purely internal situation cannot invoke them, apart from the exceptional case where national measures deprive citizens of the genuine enjoyment of the substance of their rights (Zambrano).
How it really works
- 1Know where the rule comes from. Free movement of workers is in Article 45 of the Treaty on the Functioning of the European Union, and citizenship in Articles 20 and 21. The definitions and the extension of citizenship rights come largely from the Court’s case law and from secondary legislation.
- 2Decide whether the person is a worker. A worker is someone who, for a certain period, performs services for and under the direction of another in return for remuneration (Lawrie-Blum). The work must be genuine and effective, not purely marginal or ancillary, and part-time work can qualify (Levin).
- 3Apply the equal-treatment rule. Article 45 abolishes discrimination based on nationality in employment, remuneration and other conditions of work. Indirectly discriminatory rules are also caught, and non-discriminatory obstacles may be.
- 4Apply citizenship. A national of a Member State is also a Union citizen. The right to move and reside is subject to the limitations and conditions in the Treaties and in implementing measures, and citizens lawfully resident may in general rely on non-discrimination on grounds of nationality (Grzelczyk).
- 5Check for derogations. Public policy, public security and public health may justify restrictions, applied proportionately and on the person’s own conduct, and the public-service exception is confined to the exercise of public authority.
Why people get it wrong
- Thinking that workers must be full-time or well paid. The test is genuine and effective work, not hours or earnings.
- Treating citizenship as an unlimited right to live anywhere. It is subject to conditions, and the Court accepts that a Member State can protect its finances within limits.
- Applying the rules to purely internal situations. A citizen who never leaves their own State generally has no Union claim.
- Reading the public-service exception widely. It applies to posts involving public authority, not to the public sector as such.
A worked example
The facts are invented
Hana, a national of one Member State, moves to another and works fifteen hours a week in a bakery, topping up her wages with a small social benefit that the host State pays to its own residents on low incomes. The host State refuses her the benefit, saying she is only a part-time worker. The question is whether she is a worker at all.
Under the Union concept, part-time work does not disqualify her if the work is genuine and effective and not on such a small scale as to be marginal and ancillary. If she qualifies, the host State may not treat her worse than its own nationals as regards social advantages, and the refusal looks like discrimination on grounds of nationality. The State would need an objective justification.
Try it
A national of one Member State works part-time in another. The host State says she is not a “worker” because she works few hours. What is the usual position?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Lawrie-Blum v Land Baden-Württemberg, Case 66/85, 1986
- Levin v Staatssecretaris van Justitie, Case 53/81, 1982
- Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, Case C-184/99, 2001
- Ruiz Zambrano v ONEm, Case C-34/09, 2011
Where to go next
More hard concepts in European Union law
- Harmonisation and the internal market (Internal market)
- Free movement of goods (Internal market)
- Freedom of establishment and freedom to provide services (Internal market)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.