1. Free movement of persons

2. Employed and self-employed persons
Sources:
Treaties
Legislation
European citizenship rights (article 20 TFEU: «right to move and reside freely within the territory of the Member States»)

3. Workers
Article 45 TFEU:
“1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service”.

4. Workers Article 45 has direct effect, according to the ECJ.
Implementing legislation:
Regulation 429/2011 on freedom of movement of workers within the Union
Directive 2004/38 on the right of citizens and their family members to move and reside freely within the territory of the Member States

5. Personal scope. The notion of workers
ECJ: need for a European notion of workers, in order to prevent Member States from limiting the personal scope of the freedom through unilateral national legislation.
«for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration»
Elements: permanency (the person has to be settled)
Subordination
Remuneration (the number of working hours and the level of remuneration is irrelevant, provided that the activity is “effective and genuine”)

6. Personal scope. The notion of workers
The so called “quasi-workers”: people who search an employment and people who used to be employed and are currently unemployed. They are included in the personal scope of article 45, with some reasonable limitations (time they are allowed to stay in the country in order to search a job)

7. Material scope. Equality in access and treatment
Article 7 regulation 492/2011:
«1. a worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement and re-employment. 2. he shall enjoy the same social and tax advantages as national workers».
This covers both direct and indirect discrimination

8. Non-discrimination
Advantages for employers (tax reductions, fares reductions for transports…)
Non-discriminatory restrictions: Bosman case, 1995.

9. Freedom of establishment
It guarantees the free movement of self-employed persons
Article 49 TFEU:
«Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital”.

10. Freedom of establishment
Self-employed persons can be natural or legal persons
They can produce goods or provide services.
Difference with the freedom to provide services: in the freedom of establishment the service provider work in the host state in a stable and continuous basis (for example in the form of a branch, an agency, or an office), while in the freedom to provide services the service providers acts on a temporary basis.
Direct and indirect discriminations are equally prohibited

11. Freedom of movement as a citizenship right
Article 21 TFEU:
“1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.
3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament”.
Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

12. Freedom of movement as a citizenship right
Direct effect of article 21_
Baumbast case (2002): the case of a father who wanted to reside in the UK with his daughters, despite the fact that he was neither a worker, nor exercising his freedom of establishment. The Court said that the right to reside within the territory of a Member State under article 21, 1, TFEU is conferred directly on every citizen of the Union by a clear and precise provision of the Treaty.

13. Consequences of the Baumbast case
Article 21, 1) is directly effective
The personal scope of the citizenship rights does not depend on the economic status of a person
Citizenship provisions are residual provisions that do not apply when other provisions can be applied (for example, workers movement)
Any limitation on citizenship rights would be subject to judicial review

14. Directive 2004/38 Rights of exit and entry Rights of residence
Rules for the right of permanent residence
Common provisions
Legitimate restrictions (public policy, public security, public health)

15. Residence rights Short-term Long-term
Permanent (after lawful presence for a continuous period of five years. It is independent of the economic status and the financial means of the citizen

16. Restrictions Public policy, public security, public health
Public service
Implied justifications (ECJ): imperative requirements in the general interest (non-discriminatory and proportional)

17. Public service exception
For workers: employment in the public service
For the right of establishment: activities connected, even occasionally, with the exercise of official authority (article 51 TFEU)
The Court favored a functional definition for both situations (the restriction is legitimate when the person performs public functions)