European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The provisions of Article 45 TFEU on the freedom of movement for workers within the Union, exclusively concern paid employment activities, with those relating to the freedom of establishment or the freedom to provide services only covering self-employed activities. An employment relationship within the meaning of Article 45 is characterized by the existence of a relationship of subordination: for  …

Free movement of workers

The provisions of Article 45 TFEU on the freedom of movement for workers within the Union, exclusively concern paid employment activities, with those relating to the freedom of establishment or the freedom to provide services only covering self-employed activities. An employment relationship within the meaning of Article 45 is characterized by the existence of a relationship of subordination: for a certain period of time a person performs services for and under the direction of another person in return for remuneration . It is therefore not in the nature of the remuneration - wage or economic consideration - where the distinction between the two situations lies but in whether the activity performed is independent in nature. 

Therefore, a temporary movement of workers who are sent to another Member State to carry out works as part of a provision of services by their employer falls within the freedom to provide services insofar as those workers return to their country of origin after the completion of their work without at any time gaining access to the labor market of the host Member State . The same goes for the activity which consists in an undertaking hiring out, for remuneration, staff who remain in the employ of that undertaking, without any contract of employment being entered into with the user . By contrast, an undertaking engaging in the making available of labor - although a supplier of services within the meaning of the Treaty - carries out activities which are specifically intended to enable workers to gain access to the labor market of the host Member State . Likewise, legislation which is intended to tax an employee who provides services for and under the direction of an employer in return for remuneration, and who is therefore engaged in an employment relationship which is characterized by subordination and the payment of remuneration in return for services rendered, falls within the scope of those provisions of the Treaty which relate to freedom of movement for workers .

In case of conflict in the interpretation of Directive No 2006/123 of 12 December 2006 on services in the internal market (see No 11.03 et seq.) and the specific Directive No 96/71 concerning the posting of workers in the framework of the provision of services, the second Directive prevails . According to the Court of Justice, to determine whether a contractual relationship must be classified as a hiring-out of workers, within the meaning of Directive No 96/71, it is necessary to take into consideration each element indicating whether the movement of workers in the host Member State is the very purpose of the supply of services on which the contractual relationship is based. In principle, evidence that such a movement is not the very purpose of the supply of services at issue are, inter alia, the fact that the service provider is liable for the failure to perform the service in accordance with the contract and the fact that that service provider is free to determine the number of workers he deems necessary to send to the host Member State. By contrast, the fact that the undertaking which receives those services checks the performance of the service for compliance with the contract or that it may give general instructions to the workers employed by the service provider does not, as such, lead to the finding that there is a hiring-out of workers .

Case C-151/04 Nadin and Nadin-Lux [2005] ECR I-11203, LawLex200900000600JBJ.

Case C-113/89 Rush Portuguesa v Office national d'immigration [1990] ECR I-1417, LawLex200900000388JBJ.

Case 279/80 Webb [1981] ECR 3305, LawLex200900001806JBJ.

Case C-544/11 Petersen, LawLex201300000470JBJ, which also specifies that any restrictive effects of the legislation in question on the freedom of employers established in another Member State to provide services do not justify an independent examination in the light of Article 56 TFEU, where such effects would be the unavoidable consequence of a restriction on freedom of movement for workers created by that legislation. 

Case C-319/06 Commission v Luxembourg [2008] ECR I-4323, LawLex200900001475JBJ.

Case C-586/13 Martin Meat kft, 	Judgment of 18 June 2015,LawLex201500000791JBJ.

European Business Law

86. Free movement of workers

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

86. Free movement of workers

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise