1. Workers and Companies’ mobility

2. Free movement of workers Is there such thing as a « labor market » ? What is a « worker » under EU law? What rights are granted to workers, who are entitled to free movement?

3. Workers’ rights Immigration - Right to enter the territory of another Member State - Right to remain on that territory to work - States’ remaining power to control immigration ?

4. Public order Member state can deport citizens of other MS for public order reasons BUT : narrow conception of the notion of public order (directive of 1964) and strict scrutiny applied by the Court of Justice

5. Equal treatement with nationals Principle of non-discrimination based on nationality (direct and indirect discriminations are prohibited) Field of equal treatment rights: employment, welfare, tax, housing… Ex : Texeira case (2010), access to welfare (housing)

6. Prohibition of all restrictions to free movement Bernard case (2010): -even if no discrimination occur, restrictions are prohibited -Horizontal application of free movement rights

7. Companies’ mobility Two dimensions: - Free establishment in another member State - Free provision of services

8. Free establishment Art. 49 TFUE: « Right to take up and pursue activities as self- employed persons and to set up and manage undertakings (…) under the conditions laid down for its own nationals by the law of the country where such establishment is effected ».

9. Forms of establisment in another MS Right of establishment includes (art. 49 TFUE): the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State

10. Prohibition of all « restrictions » to free establishment Art. 49 TFUE: « restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited » ECJ: restrictions can only be accepted if justified by compelling interests & proportional to the aim of the measure

11. Delaware effect ? ECJ, Centros (1999) Facts: - Danish law requires a substantial capital input on formation of a closely held company limited (about 28.000 Euro, more than 27.000 US $). - Danish founders of the company decide to set up a company in the UK (minimum capital of £ 100) and, without starting any business activity in the UK, applied for registration at the Danish registry office -The application was turned down because Centros, Ltd. had not established a trade or business in the UK(= it was in fact seeking to establish not a branch, but a principal establishment) and was thereby circumventing Danish rules, more specifically those on minimum capital

12. ECJ, Centros (1999) Ruling: It is contrary to the teaty to refuse to register a branch of a company formed in accordance with the law of another member state in which it has its registered office, but carries on no business Limit: "this interpretation does not prevent the authorities of the (host state) to adopt appropriate measures for preventing or penalising fraud, either in relation to the company itself, or in relation to its members, where it has been established that they are in fact attempting by means of the formation of a company, to evade their obligations towards private or public creditors established in the territory of the Member States concerned

13. Companies’economic freedoms v. workers’ rights The Viking case (2007): Can workers’ right to collective action be considered a restriction to free establishment?

14. The Viking case (2007) Facts: - Viking Line is a Finnish passenger shipping company - Owned and operated a ferry, Rosella, under a Finnish flag and with a predominantly Finnish crew who benefited from a collective agreement negotiated by the Finnish Seamen’s Union - Viking decided that it would be better off if Rosella was registered as an Estonian ship, crewed by Estonian seafarers on lower wages (operation of “reflagging”).

15. The Viking case (2007) Outcome: 1- Recognition of the right to take collective action as guaranteed by international and Community law. 2- Strike is a restriction to Free establishment => Justification & proportionality required & reviewed in courts