COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Reaffirming the free movement of workers: rights and major developments
Date: 2010-07-13
Institutions: European Commission
Subjects: European citizenship, approximation of laws, employment statistics, equal treatment, free movement of persons, free movement of workers, integration of migrants, migrant worker

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EUROPEAN COMMISSION 

Brussels, 13.7.2010 
COM(2010)373 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE 
EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Reaffirming the free movement of workers: rights and major developments 

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Introduction 

Over the last 40 years the principle of the free movement of persons has developed constantly 
and grown steadily  stronger. Originally intended for the active population, this fundamental 
freedom  has  gradually  been  extended  to  include  other  sections  of  the  population,  and  now 
constitutes one of the most important individual rights that the EU guarantees to its citizens. 

through  secondary 

The principle of the free movement of workers is enshrined in Article 45 (ex-Article 39 EC) 
of the Treaty on  the  Functioning  of  the  European Union  (hereinafter ‘TFEU’) and has been 
law  (Regulation  (EEC)  No  1612/681  and  Directive 
developed 
2004/38/EC2, as well as Directive2005/36/EC3) and by the case-law of the Court of Justice of 
the European Union (hereinafter ‘CJ’). The existing body of EU law (the acquis) in this area 
gives European citizens the right to move freely within the EU for work purposes and protects 
the social rights of workers and of their family members4. In this dynamic area, where change 
is driven by labour market policy, family structure and the process of European integration, it 
is free movement which not only contributes to the achievement of the single market but also 
has  a  significant  social  dimension,  in  so  far  as  it  fosters  the  social,  economic  and  cultural 
inclusion of EU migrant workers within the host Member States.  

According  to  the  latest  Eurostat  data  available5,  2.3%  of  EU  citizens  (11.3  million  persons) 
reside  in  a  Member  State  other  than  the  state  of  which  they  are  a  citizen,  and  many  more 
exercise  this  right  at  some  point  in  their  life6.  That  number  has  grown  by  more  than  40%7 
since  2001.  According  to  a  recent  Eurobarometer  survey,  10%  of  persons  polled  in  EU-27 
replied that they had lived and worked in another country at some point in the past, while 17% 
intended to take advantage of free movement in the future. 

In principle, every EU citizen has the right to work and live in another Member State without 
being discriminated against on grounds of nationality. However, despite the progress that has 
been made, there are still legal, administrative and practical obstacles to exercising that right. 
Recent  report8  on  the  application  of  the  Directive  2004/38/EC  concluded  that  its  overall 
transposition was rather disappointing and highlighted a number of problems EU citizens on 
the  move,  workers  or  not,  faced  abroad.  The  conclusion  drawn  from  the  European  Year  of 
Workers’ Mobility in 2006 was that, in addition to the legal and administrative obstacles on 
which recent efforts have generally focused (e.g. recognition of qualifications and portability 
of supplementary pension rights), there are other factors that influence trans-national mobility. 
These  include  housing  issues,  language,  the  employment  of  spouses  and  partners,  return 

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OJ L 257, 19.10.1968, p. 2, hereinafter ‘the Regulation’. 
OJ L 158, 30.4.2004, p.77, hereinafter ‘the Directive’. 
OJ L 255, 30.9.2005, p. 22. 
EU law on free movement of workers applies to EU citizens and their family members, irrespective of 
their nationality. 
Situation in 2008. 
37%  (11.3  million  persons)  of  non-nationals  in  EU-27  are  citizens  of  another  Member  State.  The 
number of non-nationals  in  EU-27  has  increased by  42%  since  2001 (for  further  details,  see  Eurostat 
Statistics in focus 94/2009). 
This covers the overall increase in the number of foreigners, including EU nationals from other Member 
States  and  nationals  of  non-EU  countries.  The  report  does  not  explicitly  cite  the  percentage  increase 
over the period 2001 to 2008 in the number of EU nationals residing in another Member State, but the 
increase was about 4 million, which translates into an increase of around 54%. 
COM(2008) 840 of 10.12.2008.  

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mechanisms,  historical  ‘barriers’  and  the  recognition  of  mobility  experience,  particularly 
within SMEs. Tackling these problems therefore calls for a broader approach9, combined with 
effective  implementation  of  the  principle  of  free  movement.  President  Barroso  stated  in  his 
political  guidelines  ‘The  principles  of  free  movement  and  equal  treatment  for  EU  citizens 
must become a reality in people’s everyday lives’10. This was followed up by the Commission 
proposal  to  facilitate  and  promote  EU  mobility  under  the  Europe  2020  strategy,  and  in 
particular in the flagship initiative ‘An Agenda for new skills and jobs’11. 

The aim of this communication is to: 

–  present an overall picture of the rights of EU migrant workers, 

–  update  the  Commission’s  previous  communication  on  the  subject12  with  regard  to 

developments in legislation and case-law, and 

–  raise  awareness  generally  and  promote  the  rights  of  migrant  workers  who  are  in  a  more 
vulnerable  situation  than  national  workers  (for  instance,  in  terms  of  housing,  language, 
employment of spouses and partners etc. as referred to above). 

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COM(2007) 773 of 6.12.2007. 
http://ec.europa.eu/archives/commission_2004-2009/president/pdf/press_20090903_EN.pdf.  
COM(2010) 2020 of 3.3.2010. 
COM(2002) 694 of 11.12.2002. 

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PART I: Who can rely on EU rules concerning free movement of 
workers? 

Defining the personal scope of EU law on free movement of workers and the conditions under 
which  that  law  applies  involves  drawing  a  distinction  between  migrant  workers  and  other 
categories  of  EU  citizens  (non-active  persons  and  self-employed  and  posted  workers).  The 
free  movement  of  workers  gives  every  citizen  the  right  to  move  freely  to  another  Member 
State  to  work  and  reside  there  for  that  purpose,  and  protects  them  from  discrimination  as 
regards  employment,  remuneration  and  other  working  conditions  in  comparison  to  their 
colleagues who are nationals of that Member State. Free movement needs to be distinguished 
from  the  freedom  to  provide  services,  which  includes  the  right  of  undertakings  to  perform 
services in another Member State for which purpose they may send (‘post’) their own workers 
there  temporarily  to  carry  out  the  necessary  work.  Posted  workers  in  the  context  of  the 
provision of services are covered by Directive 96/71/EC13, which establishes a ‘hard core’ of 
clearly defined terms and conditions of work and employment for the minimum protection of 
workers,  including  minimum  rates  of  pay,  which  must  be  complied  with  by  the  service 
provider in the host Member State. 

This communication does not cover posted workers in the context of the provision of services 
to whom the specific rules laid down in the Posting of Workers Directive apply. Nor does it 
cover  self-employed  workers  who  enjoy  the  freedom  to  establish  or  to  provide  services  in 
other Member States. 

1. 

EU MIGRANT WORKERS 

1.1. 

Definition 

Every national of a Member State has the right to work in another Member State14. The term 
‘worker’  has  a  meaning  in  EU  law  and  cannot  be  subject  to  national  definitions15  or  be 
interpreted restrictively16. It covers any person who undertakes genuine and effective work for 
which he is paid under the direction of someone else17. It does not cover third country migrant 
workers.  It  is  the  responsibility  of  the  national  authorities  to  undertake,  in  the  light  of  that 
definition, a case-by-case evaluation to establish whether those criteria are met. 

Remuneration 

A worker under EU law must receive remuneration in return for services. The fact of having 
limited income does not prevent a person from being considered a worker18, and benefits in 

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OJ L 18, 21.1.1997, p. 1. 
Temporary  restrictions  may  apply  until  30.4.2011  at  the  latest  to  nationals  of  the  Czech  Republic, 
Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia, and until 31.12.2013 at the latest to 
nationals of Bulgaria and Romania. 
Case C-75/63. 
Case C-53/63. 
Case C-66/85. 
Cases C-53/81 and C-139/85. 

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kind  are  also  considered  as  remuneration19.  Only  voluntary  work  without  any  form  of 
remuneration is excluded. 

Subordination 

A  relationship  of  subordination  allows  a  distinction  to  be  drawn  between  workers  and  self-
employed persons. This distinction is important for the application of transitional measures20 
and access to benefits reserved for workers. 

Work  in  a  relationship  of  subordination  is  characterised  by  the  employer  determining  the 
choice  of  activity,  remuneration  and  working  conditions21.  Self-employed  persons  perform 
tasks under their own responsibility and may thus be liable for damage caused as they bear the 
economic risk of the business22, for example in so far as their profit is dependent on expenses 
incurred on staff and equipment in connection with their activity23. 

Genuine and effective work 

The key criterion for deciding whether a person is a worker is the nature of the work itself. 
The CJ has consistently held that a person must pursue an activity of economic value which is 
effective and genuine, excluding activities on such a small scale as to be regarded as purely 
marginal  and  accessory24.  Short  duration  of  employment,  limited  working  hours  or  low 
productivity25 cannot prevent an EU citizen from being considered an EU migrant worker. All 
circumstances  of  the  case  relating  to  the  nature  of  the  activities  concerned  and  the 
employment relationship should be taken into consideration26. 

Part-time workers27, trainees28 and au pairs29 fall within the EU definition if their activity is 
effective  and  genuine.  In  the  case  of  short-term  training,  the  number  of  hours  needed  to 
familiarise oneself with a task30 and a gradual increase in remuneration during training may 
be an indication that the work performed is of growing economic value to the employer31. No 
account  should  be  taken  of  the  short-term  nature  of  the  employment  in  relation  to  the  total 
duration of residence by the person concerned in the host Member State32. 

Part-time  work  must  not  be  the  person’s  principal  activity.  A  person  undertaking  another 
activity  at  the  same  time  (e.g.  studies  or  self-employment)  can  rely  on  his  EU  status  as  a 
worker, even if the second activity is performed in another Member State33. 

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Cases C-196/87 and C-456/02. 
Transitional arrangements, usually imposed on citizens of new Member States during a certain period 
after accession, apply to access to the labour market and not to self-employed activities. 
Case C- 268/99. 
Case C-3/87. 
Case C-202/90. 
Case C-53/81. 
Case C-344/87. 
Case C-413/01. 
Case C-53/81. 
Case C-109/04. 
Case C-294/06. 
Case C-3/90. 
Case C-188/00. 
Case C-413/01. 
Case C-106/91. 

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The  nature  of  the  legal  relationship  between  the  employee  and  the  employer  is  of  no 
consequence in terms of determining the former’s status as a worker: public law status (civil 
servants and public sector employees with a work relationship under public law) and private 
law contracts (also in the public sector) are covered34; a person with a contract for occasional 
employment, such as an on-call contract35, would also fall within the definition of a worker as 
long as the activities performed are effective and genuine and fulfil other conditions in the EU 
definition. 

Furthermore,  the  CJ  has  held  that  sport  is  subject  to  EU  law  in  so  far  as  it  constitutes  an 
economic  activity36.  As  a  consequence,  professional  and/or  amateur  sportsmen  and 
sportswomen  involved  in  gainful  employment  may  be  included.  Working  activities  of  a 
rehabilitative nature as part of work-reintegration programmes are not necessarily excluded. 
However, determining whether they are effective and genuine activities will depend on what 
the  social  reintegration  programme  entails  and  the  nature  and  details  of  performance  of  the 
services. 

1.2. 

Cross-border link 

In addition to meeting the above definition of a worker, a person must be a migrant worker in 
order  to  be  covered  by  EU  law,  i.e.  he  or  she  must  have  exercised  his  or  her  right  to  free 
movement:  EU  rules  apply  when  a  person  works  in  a  Member  State  other  than  his  or  her 
country of origin or in his or her country of origin while residing abroad37. EU citizens who 
reside  in  one  Member  State  and  work  in  another  Member  State  (frontier  workers)  are  also 
covered  by  EU  law  on  the  free  movement  of  workers  in  the  Member  State  where  they  are 
employed38.  Where  such  a  frontier  worker  resides  in  a  Member  State  of  which  he  is  not  a 
national, he or she may rely on EU law as a self-sufficient non-active person in that Member 
State under the Directive 

A person may be considered an EU migrant worker in his or her Member State of origin if he 
or she has exercised the right of free movement and then returns to his/her country of origin39. 
The reason why EU law covers such returning migrants is that preventing them from relying 
on EU law against their Member State of origin could discourage nationals of a Member State 
from exercising their right to free movement in the same way as migrant workers from other 
Member States.  

1.3. 

Territorial scope 

EU law on free movement of workers applies to the EU Member States (Article 52 TEU) and 
the territories listed in Article 355 TFEU.  

It  applies  to  professional  activities  carried  out  within  the  territory  of  a  Member  State  or 
outside EU territory if the legal relationship of employment is located within the territory of a 
Member State or retains a sufficiently close link with that territory40. This may be the case of 

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Case C-152/73. 
Case C-357/89. 
Cases C-415/93 and C-519/04. 
Case C-212/05. 
Case C-357/89. 
Case C-370/90. 
Case C-214/94. 

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a person working in an embassy of another Member State in a non-EU country or a seafarer 
employed on board ships flying the flag of another Member State on the high sea, or aircraft 
personnel.  Various  points  may  be  considered  when  determining  whether  the  link  with  EU 
territory is sufficient41. 

2. 

OTHER BENEFICIARIES 

Other categories of persons also fall within the scope of Article 45 TFEU. 

2.1. 

Family members 

Family  members  are  defined  as  the  spouse,  under  certain  circumstances  the  partner  with 
whom  an  EU  citizen  has  contracted  a  registered  partnership42,  direct  descendants  who  are 
under  the  age  of  21  or  are  still  dependants,  and  the  dependants'  direct  relatives  in  the 
ascending line as well as those of the spouse or partner. 

2.2. 

People retaining the status of worker 

Generally speaking, persons who have worked in the host Member State, but who no longer 
work there, lose the status of worker43. Nevertheless, EU law provides that EU citizens retain 
the  status  of  worker  in  certain  situations  even  where  they  are  no  longer  employed44,  and 
therefore qualify for equal treatment. 

2.3. 

Jobseekers 

Under Article 45(3) TFEU, the right to move freely within the territory of the Member States 
is conferred upon workers for the purpose of accepting offers of employment actually made. 
However, if EU law applied only to those who had already obtained job offers before moving 
to  another  Member  State,  this  would  call  the  fundamental  principle  into  question.  As  a 
consequence,  the  CJ  explicitly  rejected  the  idea  that  Article  45  TFEU  applies  only  to  EU 
citizens  engaged  in  active  employment  and  it  extended  its  scope  to  include  those  seeking 
employment under certain conditions (the persons concerned must provide evidence that they 
are continuing to seek employment and have a genuine chance of being engaged; see below 
for further details)45.  

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Such as where the person was hired, whether the contract of employment was concluded in accordance 
with the law of a Member State and whether the employment relationship is governed by that law, or 
whether the person is affiliated to a social security system of a Member State and is subject to income 
tax in that country. 
Article 2(2) of the Directive. 
Case C-85/96. 
Article 7(3) of the Directive. 
Case C-292/89. 

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PART II: What rights do migrant workers enjoy? 

This Part addresses the rights enjoyed by migrant workers pursuant to the Regulation and the 
Directive. It does not deal with social security rights46. 

1. 

JOB-SEEKING AND ACCESS TO BENEFITS 

EU citizens have the right to look for employment in another Member State and to receive the 
same  assistance  from  the  national  employment  office  there  as  nationals  of  that  Member 
State47. The EURES network provides information, advice and assistance for placement and 
recruitment, in addition to matching CVs and vacancies. These services are delivered by the 
EURES  advisers  in  Public  Employment  Services  and  by  other  staff  of  the  EURES  partner 
organisations  involved.  EURES  also  has  a  website48  where  citizens  can  access  vacancies 
online and upload their CVs. 

While such jobseekers were previously considered as having to be treated on an equal footing 
with  nationals  as  regards  access  to  work  alone49,  the  CJ  concluded  that  the  introduction  of 
Union  citizenship  means  that  they  should  also  qualify  for  equal  treatment  with  regard  to 
access  to  benefits  of  a  financial  nature  intended  to  facilitate  access  to  employment  on  the 
labour market of the host Member State50. 

However, to limit the strain on social assistance systems, the CJ added that a Member State 
could  require  that  there  be  a  genuine  link  between  the  jobseeker  and  the  geographic 
employment market in question, such as the person needing to have, for a reasonable period, 
genuinely  sought  work  in  the  Member  State  in  question.  The  CJ  also  considered  that  a 
proportionate residence requirement may be appropriate for the purpose of proving a link with 
the labour market.  

While national legislators remain competent for determining the nature of the link with their 
employment market, they should respect the principle of proportionality. Criteria should not 
go beyond what is necessary to conclude that the person concerned is genuinely seeking work 
on  the  employment  market  of  the  host  Member  State.  The  protection  of  the  rights  of  EU 
citizens  also  means  that  such  criteria  are  known  to  them  in  advance  and  that  they  can  seek 
redress of a judicial nature. 

Article  24(2)  of  the  Directive  authorises  the  Member  States  not  to  grant  jobseekers  social 
assistance during the first three months of residence or for a longer period. However, the CJ 
made  it  clear  in  a  further  decision51  that  financial  benefits  to  facilitate  access  to  the  labour 
market  cannot  be  regarded  as  constituting  ‘social  assistance’  within  the  meaning  of  that 
Article.  The  CJ  therefore  concluded  that  jobseekers  must  enjoy  equal  treatment  as  regards 

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Regulation  (EC)  No  883/2004  (OJ  L  166,  30.4.2004,  p.  1)  deals  with  social  security  rights  from 
1.5.2010; a first step in the area of supplementary pensions is Council Directive 98/49/EC of 29 June 
1998 (OJ L 209, 25.7.1998, p. 46). 
Article 5 of the Regulation. 
http://ec.europa.eu/eures/. 
Case C-149/79. 
Cases C-138/02, C-258/04 and C-22/08. 
Case C-22/08. 

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access  to  benefits  that  aim  to  facilitate  access  to  the  labour  market.  In  order  to  determine 
whether a particular benefit under national law aims to facilitate access to the labour market, 
its  objective  must  be  analysed  according  to  its  results  and  not  according  to  its  formal 
structure52. 

The  inclusion  of  jobseekers  within  the  scope  of  the  equal  treatment  principle  as  regards 
certain  benefits  is  a  guarantee  of  better  protection  for  those  who  may  find  themselves  in  a 
more vulnerable situation for a certain period of time and represents a practical step towards 
achieving a social Europe. 

2. 

ACCESS TO WORK UNDER THE SAME CONDITIONS AS NATIONAL WORKERS 

EU  citizens  have  the  right  to  take  up  an  activity  in  another  Member  State  under  the  same 
conditions  as  those  that  apply  to  its  own  nationals.  However,  one  restriction  and  several 
specific aspects apply. 

2.1. 

Recognition of professional qualifications 

An EU citizen who is fully qualified to exercise a profession in one Member State and who 
wishes to exercise that profession in another Member State where the profession is regulated 
must  first  apply  for  recognition  of  his  or  her  qualification.  A  profession  is  regulated  where 
access  is  subject  by  legal  regulation  or  administrative  provisions  to  the  possession  of  a 
professional  qualification.  Access  to  the  labour  market  depends  on  the  granting  of  such 
recognition. 

Directive  2005/36/EC  applies  to  the  recognition  of  professional  qualifications  obtained  in  a 
Member State with a view to exercising a regulated profession in another Member State53. 

The rules in that Directive vary according to whether the profession is exercised in the host 
Member  State  on  a  temporary  basis  (for  instance  by  seasonal  workers)  or  on  a  permanent 
basis  (establishment,  for  instance  under  an  open-ended  or  long-term  contract).  Where  the 
profession  is  exercised  on  a  temporary  basis,  no  vetting  of  the  worker’s  qualifications  is 
authorised unless the profession has health or safety implications. However, the host Member 
State  may  require  a  declaration  on  an  annual  basis.  In  the  case  of  establishment,  the 
recognition regime varies according to the profession. 

Directive 2005/36/EC does not apply, however, where the diploma does not attest to specific 
professional training, i.e. training specifically for a given profession. Posts in the public sector 
in a Member State often call for a different type of diploma that attests to a certain level of 
education  (university  degree,  school-leaving  certificate  plus  three  years’  higher  education 
etc.) or a diploma attesting to a level of education that meets certain content-related criteria 
without  the  content  in  question  constituting  vocational  training  within  the  meaning  of 
Directive  2005/36/EC  (a  requirement  for  a  diploma  in  either  economics,  political  science, 
science or social sciences, etc.). 

Such cases fall under Article 45 TFEU rather than within the scope of Directive 2005/36/EC. 
The authorities of the host Member State are entitled to assess the level of the diploma but not 

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Ibid. 
http://ec.europa.eu/internal_market/qualifications/index_en.htm and 
http://ec.europa.eu/internal_market/qualifications/docs/guide/users_guide_en.pdf.  

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its training content, where the only significant factor is the level of study for which a diploma 
is awarded. 

When  the  diploma  needs  to  meet  certain  content-related  criteria  in  addition  to  being  of  a 
specific level, its  equivalence  should  be recognised  where it was awarded on completion of 
education  or  training  in  the  required  subject.  No  further  assessment  of  training  content  is 
authorised. 

2.2. 

Language requirement54 

The CJ has held that any language requirement must be reasonable and necessary for the job 
in question and cannot constitute grounds for excluding workers from other Member States55. 
Employers  cannot  demand  a  particular  qualification  only  by  way  of  proof,  and  systematic 
language tests  carried out in a  standardised form are considered  contrary  to the principle of 
proportionality56. 

While a very high level of linguistic knowledge may be justifiable in particular situations and 
for certain jobs, the Commission considers that a requirement for the person to be a mother-
tongue speaker is not acceptable. 

2.3. 

Access to posts in the public sector57 

In accordance with Article 45(4) TFEU, the Member State authorities may restrict access to 
certain posts in the public service to their own nationals. This is an exception to be interpreted 
restrictively. The CJ has consistently held that this exception covers posts involving direct or 
indirect participation in the exercise of powers conferred by public law and duties designed to 
safeguard the general interests of the State or of other public authorities58. Those criteria must 
be assessed on a case-by-case basis with regard to the nature of the tasks and responsibilities 
covered by the post. In 2003 the CJ ruled that a Member State may reserve for its nationals 
the  posts  of  captain  and  chief  mate  on  private-sector  ships  flying  its  flag  only  if  the  rights 
under  powers  conferred  by  public  law  are  actually  exercised  on  a  regular  basis  and  do  not 
represent a very minor part of their activities59. The Commission considers that this case-law 
must  be  taken  into  account  by  Member  State  authorities  when  determining  which  public-
sector posts they may reserve for their nationals. 

As  Article  45(4)  TFEU  allows  the  Member  States  to  reserve  some  posts  for  their  nationals 
rather than requiring them to do so, the Commission calls upon them to open up their public 
sectors (at all levels, including local, regional and central government) as much as possible to 
citizens of other Member States as a contribution to modernisation and reform. 

Once  a  public-sector  post  is  open  to  migrant  workers,  the  Member  States  must  guarantee 
equal treatment as far as other aspects of recruitment are concerned. The CJ has held that the 
Member State authorities must take account of previous periods of comparable employment 
experience  acquired  by  migrant  workers  in  other  Member  States  in  the  same  way  as 
professional experience acquired within their own system for the purpose of providing access 

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Article 3(1) of the Regulation and Article 53 of Directive 2005/36/EC. 
Case C-379/87. 
Case C-281/98. 
A forthcoming Commission staff working document will discuss these issues in greater detail. 
Recently in case C-290/94. 
Cases C-405/01 and C-47/02; the Court confirmed this in four rulings. 

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to their own public sector60. The Member States must also give consideration to comparable 
diplomas  as  part  of  the  recruitment  process  (e.g.  where  additional  points  are  awarded  for  a 
diploma). 

With regard to competitions to recruit persons for specific training with a view to filling posts 
in a certain field of public-sector activity, the CJ has held that migrant workers who are fully 
qualified  in  the  field  must  be  exempted  from  completing  the  specific  training,  given  the 
training  and  professional  experience  they  have  already  acquired  in  their  country  of  origin61. 
The  CJ  decided  that  a  Member  State  may  not  oblige  those  migrant  workers  to  pass  such  a 
competition, but must provide for different methods of recruitment instead. 

2.4 

Sport and free movement of workers 

The  impact  on  sport,  and  in  particular  on  football,  of  the  EU  rules  on  free  movement  of 
workers  has  been  a  highly  topical  issue,  particularly  as  sport  is  increasingly  taking  on  a 
European dimension. The Commission’s 2007 White Paper on Sport makes it clear that, while 
it  takes  account  of  the  special  characteristics  of  sport,  the  Commission’s  action  aims  to 
achieve the main objectives of the Treaty and respect its fundamental principles in this area. 

With  the  entry  into  force  of  the  Lisbon  Treaty,  sport  becomes  a  field  in  which  the  EU  can 
contribute to the promotion of European sporting issues and encourage cooperation between 
the  Member  States  (Article  165  TFEU).  This  new  competence  does  not,  however,  preclude 
the  application  to  sport  of  fundamental  principles  of  EU  law,  such  as  free  movement  and 
competition rules. 

The CJ has confirmed on several occasions that professional and semi-professional sportsmen 
are workers by virtue of the fact that their activities involve gainful employment62. 

The fact that professional sportspeople fall within the scope of Article 45 TFEU means that 
the equal treatment principle applies to sport, prohibiting any direct discrimination on grounds 
of nationality, requiring indirectly discriminatory measures to be necessary and proportionate 
to  the  achievement  of  their  legitimate  objective  and  calling  for  the  abolition  of  unnecessary 
and disproportionate obstacles impeding the exercise of the right to free movement.63 

3. 

EQUAL TREATMENT 

Article 45(2) TFEU entails the abolition of any discrimination based on nationality between 
workers  of  the  Member  State  as  regards  employment,  remuneration  and  other  conditions  of 
work and employment. 

3.1. 

Prohibition of discrimination and obstacles to free movement of workers 

Article  45  TFEU  prohibits  any  discrimination  based  on  nationality  as  regards  employment, 
remuneration  and  other  working  conditions.  This  includes  not  only  direct  discrimination 

60 
61 
62 
63 

Case C-419/92. 
Case C-285/01. 
Cases C-36/74, 13/76, C-415/93, C-519/04 , C-176/96.and C-325/08. 
The  Commission  intends  to  present  in  October  2010  a  Communication  on  the  implementation  of  the 
Treaty of Lisbon in the field of sport and the issue of the impact of free movement rules on sport will be 
dealt in a more detailed and integrated approach. 

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based  on  nationality,  but  also  indirect  discrimination  which,  by  the  application  of  other 
criteria of differentiation, leads in fact to the same result64. The CJ has concluded that even if 
certain criteria are applicable irrespective of nationality, they must be regarded as indirectly 
discriminatory if there is a risk of migrant workers being placed at a particular disadvantage65. 
Common examples of indirect discrimination are situations where a particular allowance66 is 
conditional on a residence condition or language requirements for certain posts that may by 
definition be more easily satisfied by nationals than by non-nationals67. 

EU law on free movement of workers aims to facilitate the pursuit of paid employment in the 
EU by EU nationals. It therefore precludes obstacles to the free movement of workers, such as 
measures  that  may  place  at  a  disadvantage  EU  nationals  seeking  to  pursue  an  economic 
activity  under  an  employment  relationship  in  the  territory  of  another  Member  State,  even 
where  such  measures  apply  irrespective  of  the  nationality  of  the  worker  (e.g.  high  transfer 
fees for professional football players68 and tax deductions69). 

3.2.  Working conditions 

A migrant worker is subject to the laws and collective agreements of the host Member State 
when exercising his profession. Article 7(1) of the Regulation provides that a migrant worker 
must  enjoy  equal  treatment  as  regards  remuneration,  stability  of  employment,  prospects  of 
promotion70  and  dismissal71.  The  CJ  has  held  that  Member  State  administrations  must  treat 
previous  periods  of  comparable  employment  worked  by  migrant  workers  in  other  Member 
States  in  the  same  way  as  professional  experience  acquired  in  their  own  system  for  the 
purpose of determining working conditions (e.g. salary and grade)72. 

The Commission considers that Member State authorities must consider comparable diplomas 
in  the  same  way  as  diplomas  acquired  in  their  own  system  for  the  purpose  of  determining 
working conditions and career prospects. 

Article  8  of  the  Regulation  extends  equality  of  treatment  to  membership  of  trade  unions:  a 
migrant worker has the right to join a union, to vote and to be eligible for the administration 
or management posts of a trade union. 

Moreover, EU legislation in the field of health and safety of workers facilitates trans-frontier 
employment,  as  workers  enjoy  at  least  a  minimum  level  of  protection  of  their  health  and 
safety in all Member States. 

3.3. 

Social advantages 

Article  7(2)  of  the  Regulation  entitles  migrant  workers  to  the  same  social  advantages  as 
national workers from the first day of their employment in the host Member State: this means 

64 
65 
66 
67 
68 
69 
70 
71 
72 

Case C-152/73. 
Case C-237/94. 
Case C-138/02. 
Cases C-379/87 and C-424/97. 
Case C-415/93. 
Case C-136/00. 
Case C-225/85. 
Case C-44/72. 
Case C-15/96. 

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that the receipt of such advantages may not be made conditional on the completion of a given 
period of occupational activity73. 

The  CJ  has  held  that  social  advantages  cover  all  advantages,  whether  or  not  linked  to  a 
contract of employment, that are generally granted to national workers primarily because of 
their objective status as workers or by virtue of the mere fact of their residence on the national 
territory,  and  the  extension  of  which  to  workers  who  are  nationals  of  other  Member  States 
seems likely to facilitate their mobility within the EU74. 

The  concept  of  social  advantage  is  very  broad  and  covers  financial  benefits75  and  non-
financial  advantages  which  are  not  traditionally  perceived  as  social  advantages.  The  CJ  has 
decided, for example, that the right to require that legal proceedings take place in a specific 
language76  and  the  possibility  for  a  migrant  worker  to  obtain  permission  for  his  unmarried 
partner to reside with him77 must be regarded as falling within the concept of social advantage 
under Article 7(2) of the Regulation. 

Member States often argue that, since frontier workers do not live in the State of employment, 
they  and/or  their  family  members  should  not  enjoy  the  same  social  advantages  as  other 
migrant  workers.  The  Court  has  rejected  those  arguments  and  held,  for  example,  that  no 
residence  requirement  can  be  applied  to  the  child  of  a  frontier  worker,  who  is  therefore 
entitled to tuition under the same conditions as those applicable to children of nationals of the 
Member State of employment78. 

3.4. 

Tax advantages 

In  the  absence  of  harmonising  measures  at  EU  level,  direct  taxation  remains  essentially  a 
national  competence.  However, 
legislation 
discriminating directly or indirectly on the basis of nationality. There is a growing body of CJ 
case-law on the application of the Treaty freedoms to direct taxes, including Article 45 TFEU. 

the  Member  States  may  not 

introduce 

Transfer of residence 

It  is  settled  case-law  that  national  tax  rules  deterring  a  national  of  a  Member  State  from 
exercising  his  right  to  free  movement  may  constitute  an  obstacle  to  that  freedom79.  Such 
unlawful restrictions include a refusal to allow EU citizens a refund of excess income tax if 
they have changed their residence during the year80 or the application of immediate exit taxes 
on unrealised capital gains of EU citizens transferring their residence abroad81. EU law also 
protects against discriminatory tax treatment of other types of income, such as pensions, both 
public  and  private,  and  other  social  benefits82.  The  CJ  has  confirmed  in  several  cases  that 

73 
74 
75 

76 
77 
78 
79 
80 
81 
82 

Case C-197/86. 
Case C-85/96. 
Such  as  a  minimum  subsistence  or  child-raising  allowance,  study  grants  and  childbirth  allowance, 
loans. 
Case C-137/84. 
Case C-59/85. 
Case C-337/97. 
Case C-385/00. 
Cases C-175/88 and C-151/94. 
COM(2006) 825 of 19.12.2006. 
COM(2001) 214 of 19.4.2001. 

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workers should be able to deduct contributions to foreign occupational pension schemes in the 
same way as contributions to domestic schemes. 

Frontier workers 

The non-discrimination rule applies to advantages related to the personal and family situation 
of  non-resident  workers  where  their  situation  is  comparable  to  that  of  a  resident  worker 
because  they  earn  (almost)  all  of  their  income  in  the  State  of  employment83.  Moreover, 
national rules denying non-residents the right to deduct costs and expenses directly linked to 
the economic activity generating the taxable income are not permissible84. 

EU citizens' cross-border taxation problems 

In  situations  where  more  than  one  Member  State  has  taxing  rights  over  income,  the  CJ  has 
confirmed  that  Member  States  are  free  to  allocate  taxing  rights  between  themselves85.  They 
usually do so on the basis of bilateral double taxation conventions. However, these bilateral 
conventions  do  not  resolve  all  double  taxation  problems  caused  by  the  interaction  of  the 
Member  States’  direct  tax  systems.  The  Commission  considers  that  international  double 
taxation  is  a  major  obstacle  to  cross-border  activity  and  that  such  problems  can  be  solved 
through  better  coordination  of  Member  States’  direct  tax  systems86.  It  launched  a  public 
consultation to obtain information from individuals, companies and tax advisers on real cases 
of double taxation on 27 April 2010 and, on the basis of the replies and further evidence that it 
is collecting of double taxation problems, may consider launching a Communication or other 
initiative in 2011. 

More generally, the Commission is working to eliminate the range of direct and indirect tax 
problems  that  EU  citizens  face  when  crossing  borders  to  work  or  do  business  or 
live. These problems which  may  prevent  citizens  from  fully  exercising  their  Treaty  rights 
include not only double taxation but also discriminatory treatment of non-residents and non-
nationals, lack of clear information on cross-border tax rules, the particular problems of cross-
administrations 
frontier  workers ,  difficulties in communicating  with 
and difficulties in obtaining tax relief due under double taxation treaties for example because 
of  complicated  claim  forms,  short  deadlines  for  claiming  relief  and delays  by  foreign  tax 
administrations  in paying refunds. A  Communication  is  planned  late  2010  that  will  analyse 
these  cross-border  tax  problems  in  detail  and  describe  ongoing  and  planned  measures  to 
eliminate the problems. 

foreign 

tax 

3.5. 

Rights after the end of the employment relationship 

EU citizens retain the status of worker after the end of the employment relationship if they are 
temporarily unable to work owing to illness, are in duly recorded involuntary unemployment, 
or  satisfy  one  of  the  other  conditions  listed  in  Article  7(3)  of  the  Directive,  and  they  enjoy 
equal treatment with the nationals of the host Member State87. 

83 
84 
85 
86 
87 

Case C-391/97. 
Cases C-234/01 and C-290/04. 
Case C-336/96. 
COM(2006) 823 of 19.12.2006 
Case C-22/08. 

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4. 

RESIDENCE RIGHTS 

Historically, migrant workers have enjoyed better conditions as regards certain rights related 
to  residence  than  non-active  EU  citizens88.  The  Directive,  which  brings  together  previous 
rules on EU citizens’ residence rights, continues to distinguish between economically active 
and non –active EU citizens.  

Migrant workers need fulfil no condition other than being a worker in order to have the right 
to reside in another Member State, but the Member States may require them to register if the 
period of employment is longer than three months. The family members of migrant workers, 
regardless  of  their  nationality,  have  the  right  to  reside  with  them  in  the  host  Member  State. 
Migrant  workers  may  acquire  permanent  residence  after  five  years  of  uninterrupted  lawful 
residence  in  the  host  Member  State  or  after  a  shorter  period  if  they  meet  the  conditions  in 
Article 17 of the Directive. 

In  addition  to  migrant  workers,  jobseekers  enjoy  the  more  beneficial  treatment  referred  to 
above.  Thus,  whereas  non-active  citizens  need  to  request  a  registration  certificate  for 
residence of more than three months, jobseekers have the right, in accordance with the case-
law of the CJ 89 and recital 9 of the Directive, to reside in the host Member State for at least 
six months without any conditions or formalities other than to have a valid passport or identity 
card. After that period expires, if jobseekers provide evidence that they are continuing to seek 
employment and have genuine chances of being engaged, the Directive grants them the right 
to  reside  in  the  host  Member  State90  on  condition  that  they  do  not  become  an  unreasonable 
burden on the social assistance system of that host Member State91. 

EU  citizens  retaining  the  status  of  workers  may  also  continue  to  reside  in  the  host  Member 
under the same conditions as workers92. 

5. 

FAMILY MEMBERS 

Family  members  of  migrant  workers,  regardless  of  their  nationality  or  whether  they  are 
dependent  of  the  EU  citizen,  have  the  right  to  work  in  the  host  Member  State93.  Migrant 
workers’ children, whatever their nationality, have the right to education in the host Member 
State on the same terms as its nationals94. 

Family  members  of  migrant  workers  have  access  to  social  advantages,  including  study 
grants95,  without  any  residence  conditions  or  previous  periods  of  residence  in  the  host 
Member State96, while non-active EU citizens and their family members must have resided in 

88 
89 
90 
91 

92 
93 
94 
95 
96 

Directives 68/360/EEC for migrant workers and Directive 90/364/EEC for non-active persons. 
Case C-292/89. 
Article 14 of the Directive. 
See ‘Right of Union citizens and their family members to move and reside freely within the Union: Guide on how to get the 
best out of Directive 2004/38/EC at http://ec.europa.eu/commission_barroso/frattini/archive/guide_2004_38_ec_en.pdf 
Article 7(3) of the Directive. 
Article 23 of the Directive. 
Article 12 of the Regulation. 
Joint cases C-389/87 and C-390/87. 
Cases C-310/08 and C-480/08. In its judgements of 23.2.2010 on these cases the CJ held that Article 12 
of  Regulation  1612/68  permits  to  recognise  to  the  child  of  a  migrant  worker  an  independent  right  of 
residence in connection with the right of access to education in the host member state. The CJ also notes 

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the Member State for at least five years in order to obtain maintenance aid in the form student 
grants or student loans. 

The CJ has also held that study grants constitute a social advantage for a migrant worker who 
continues to support a child and that, depending on national law, a dependent child may also 
rely  on  Article  7(2)  of  the  Regulation  as  an  indirect  beneficiary  of  the  equal  treatment 
accorded to the migrant worker97. 

This also applies if the benefit is aimed at financing studies outside the host Member State98. 

6. 

BETTER ENFORCEMENT AND ADMINISTRATIVE COOPERATION 

As shown by the foregoing, the legal framework for free movement of workers is substantive, 
detailed and well-developed. 

The Commission considers that enforcement of these rights is increasingly important because 
they promote European integration. 

To  that  end,  EU  citizens  may  rely  directly  on  Article  45  TFEU  and  Regulation  (EEC) 
No 1612/68 to challenge before the national courts and administrative authorities any national 
legislation  or  practice  by  public  and  private  employers  which  they  consider  contrary  to  EU 
law. The Commission may bring an action against a Member State before the Court of Justice 
of  the  EU  for  the  non-conformity  of  national  legislation  or  administrative  practice  with  EU 
law. 

Furthermore,  there  are  also  a  range  of  information  and  non-judicial  services  that  help  to 
enforce the provisions on free movement of workers. The new Your Europe portal offers clear 
information on the rights of citizens when they work, live or study in another EU country. It 
also gives direct access to the most relevant assistance service, such as SOLVIT99, IMI100 or 
EURES  and  other  specialised  websites101.  Making  workers,  members  of  their  families  and 
stakeholders  aware  of  the  rights,  opportunities  and  instruments  that  exist  to  promote  and 
guarantee  freedom  of  movement  is  a  key  point  in  enforcing  EU  law102.  EU  citizens  need 
easily  accessible,  understandable  information  on  their  rights  and  adequate  assistance  when 
moving  within  the  European  Union103.  The  Commission  is  further  conducting  a  broader 
exercise  aimed  at  tackling  comprehensively  all  obstacles  European  citizens  encounter  when 
they exercise their rights as Union citizens in all aspects of their daily lives. To this effect, the 
Commission has announced its intention to present a Report on Citizenship in its 2010 Work 
Programme. 

97 
98 
99 
100 

101 
102 

103 

that  the  right  of  residence  of  the  child  and  the  parent  cannot  be  made  conditional  on  financial  self-
sufficiency. 
Case C-3/90. 
Ibid. 
http://ec.europa.eu/solvit/. 
IT  tools  such  as  the  Internal  Market  Information  System  (IMI)  aimed  at  facilitating  administrative 
cooperation between Member States' administrations are also helpful.  
http://ec.europa.eu/social/main.jsp?catId=25&langId=en&furtherPubs=yes. 
For  example,  see  Guidelines  on  better  application  of  Directive  2004/38/EC,  COM(2009)  313  of 
2.7.2009. 
See the updated guide ‘Do you want to work in another Member State? Find out about your rights!’ at 
http://ec.europa.eu/social/main.jsp?catId=25&langId=en&pubId=215&type=2&furtherPubs=yes. 

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As for workers in particular, the Commission will look at how the social partners and NGOs 
can  play  a  part  in  helping  to  strengthen  their  rights  and  to  make  them  effective,  with  the 
support of the existing network of academic experts104. 

Despite  the  improvement  brought  about  by  recent  developments,  the  issue  of  the 
enforceability  of  Regulation  (EEC)  No 1612/68  still  needs  attention.  The  Commission  will 
explore  ways  of  tackling  the  new  needs  and  challenges  (in  particular  in  the  light  of  new 
patterns of mobility) facing EU migrant workers and their family members, and in the context 
of the new strategy for the single market (following the presentation of the Monti report) will 
consider  how  to  promote  and  enhance  mechanisms  for  the  effective  implementation  of  the 
principle  of  equal  treatment  for  EU  workers  and  members  of  their  families  exercising  their 
right to free movement. 

104 

European  Network  on  Free  Movement  of  Workers  within  the  European  Union  is  available  at: 
http://ec.europa.eu/social/main.jsp?catId=475&langId=en. 

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