T Re ee Peed 8 FREE MOVEMENT OF WORKERS AND THE SELF-EMPLOYED 3. The personal scope ofthe Teatyprovisions Farther oading A, INTRODUCTIONa8 PRE MOVEMENT OF PERSONS AND SERVICES stat, and provide the skills needed bythe host state, Furthermore the EU rales on fee «dom of movement meant that employers had alargr potential poo af workers from which to dray: andthe principle ofnon-discetmivation meant tha eniplayers selected canst Fused om mei, not nationaty, At east, his was the theory. In practice workers and the sellemployed—at least those fom the orginal Member Stalex~often preferred to say (unemployed) ina state they were familiar ith, nthe company ffl and frends “The Union responded to this problem by adoptingaseriet of measures giving eights not only to workers (and subsequently the selé outoniaws sta 28 sheneetpcin opts fon ind at whined ie oi EU he5: FRE MOVEMENT OF WORKERS AND THESELE-EMPLOYED 239, ides $B came to the UK and Ireland). The fear that the UK had lost contol oftsborders E ee B. THE PERSONAL SCOPE OF a) THE TREATY PROVISIONS = the Article 45(1) TFEU provides ‘Freedom of movement for workers shall be secured within hts the Union, Although there is no definition of the term ‘worker’ in the ‘Treaty, the Court RD, “uniform interpretation across the Member States.* In essence, where Union nationals are ver are workers, As the Court pat it in Lawrie-Blum,” the essential feature of an emplay- her ‘ment relationship is that ‘for @ certain period of time a person performs services for and ser endl aco eesti pea ctu WHEL ec eae ae = national court must decide whether a relationship of subordination exists." The sphere L ‘of employment," the nature of the legs! relationship between employer and employee a ‘the individual lives in one state and works in another (frontier workers)!*—are all imma- ql tien Pe ‘Canes is) ECHOLS pe 6-12 "Cae =A Men Hine dere ber rep 991 ECRI-SR par 1 Incase 907 Rasen i ae Ceti (IC) 04] FER 8m pce. 7 He Ct nbc iti tote atonal corto dele tars icc ppg dvr eso hus ‘fapun contac concoed ith the MPG sed he eto ration een Cae {C1094 Aachr Sabet an Ft 08) ECR 35 paw te Cas ata Siac andslhrehole of compan ato rkrhecan company nso seen stone ‘ise 3974 Wale amd Koh 94) ECR a ar {Sine 1573 Sn Dee Bunepst TA ECR 5,5, See ale Ce C2018 a ambi. alg Cash ESC 2N142185, pura 8 he pe of pot ay con be ork {Cae C=23)00 Darna XSL [1] R-Design "Cae CT Cae Rr Fete Sar Dt de Fadintaton de ple ELC 201279%The worker must also be engaged in genuine and effective economie activity within the meaning of Article 2 EC (peal by the Lisbon Treaty but mich ofthe sub ance is repeated im Article TEL) While most activites satis this requirement” including playing professional fotall doing an apprenticeship!” and other types of training"—thie may not always ve the case, For example, work as pat of a com: ‘unity based religion might not constitute an economic activity This wa at issue in Seymann.” where a plumber worked for a Bhagwan community as par of ts com- metal activities. On the fact, the Court considered that since the community Inoked afer his material needs and paid him pocket money this might constitate an indivet ‘quid pro quo for genuine and effect ve work, and 90 Steymann could be considered srorker ‘On the other hand, ln Betray the Court found thet paid activity provided bythe state as part of «drug rehabilitation programme didnot represent a genuine and ef fective economic activity, since the wor, which was designed for those who could not take up work under normal’ caliins, was tailored toa individual's needs and was invended vo reintegrate them into che employment market. By contrast, in Trojan the (Court justiceleft ito thenationalcourt to decide whether Trojans work, performed forand under te direction ofa Salvation Army bose for about 30houts a week s part, ‘of programme reintegreting individuals to the labour make, was tel and genuine ‘id actvity, taking into account te status and practices ofthe hostal, the content of the social reintegration programme and the nature an detail of performance ofthe ‘The economic activity must also not be om such 2 small scala to he purely mar ginal and ancillary.® Although tishurdle might raise particular dials for part. Time workers, the Court hes genera ly found that they ae sil workers. For example, in Levin’ he Court found tht a British woman working part-time asa chamberma in the Netherlands cull hea worker, eventhough she earned les than a subsistence wage, because, according to the Court, part-time work constituted an effective means of improving an individdal’ living conditions.” In Kemp Use Court als found that the work ofa part-time music teacher was not on “such a small scale a wo be purely ‘marginal end ancillary’ even though his income was supplemented by social security benefits” The Court sad that once a finding of effective and genuine employment " Sega 10% Don Manes 76] BER 3p. * Cees Boman 985 ECR, pa 7% {eC Kare ne Yue Land der Warton FRI U6, ein te cote "Cae C1098 anos 208) ECRE-221 Cae 1005 attr Mare Tn de p06) ECR FS pre 2 Cade eymenn Santos an te] ECR 19 pr. ,Saimande Bremen 1958) EC. Iemma pom empl es Gane and erin 0) ECR Cae CA5GRE Tae CPASPDOT HORT. a2 ScegCae€ 39 Rainy inn Ondrnfn Wonca 93-107 pra. 10 the aretha heemplyment st terdaaien cool attend cero ts AAS THU: Cae 801 Fan MnO Rendon fr Wena ond Kas [203 caus 6] ECRIODS pa 17> Pa 8 Cae LMS HON ECR AL Sees AP HI) CRD.Sr FREE MOVEMENT OF WORKERS AND THESELP-EMPLOYED 241 vied. services pr he case law identifying a worker was uselly summarized in Kurz where the Couct ic either the sb generis mature ofthe employment relationship under natn fa nor the evel of productiityof he person concerned, the ergin ofthe ands for which the eimneration pad the mie amovat of enanesaioncanbave ay consequence ta equ to whether or nt the person i wake ‘his tends to suggest thatthe Couet wil nl that an indvklal Isa wocker where pos sible vew confirmed in Votoms.” Thereerring court had fund that the bre minor professional activity engaged in by Me Yatsouras “id not ensure hiya livelihood.” he tof Nevertheless, the Court of use said that the independently ofthe lite amount of te remuneration and he short duration of te 5 profaslonal acti, teat be ruled it hat tha poessonal atv following ab (er assessment oF the enploymentreatonshpy maybe consiered by the national a authorities as real and genuine, thercby allowing its holder to be granted the stats of t ‘worker within the meaning of Arce HS TPEUL* cs ‘The Court has extended the definition af ‘worker to Include those seeking work" While che period allowed for wosk-sekar to remain inthe host state depends om the a ules ofthat stat, they must e given at ae three months look for work,” although y Ithey are dependent on social security they may be asked to leave.” Al the time of y the decision In Antonis" migrants fn the UK had six months to look for work” “ ‘hich the Court foundto be compatible with Union lav I atthe end ofthe six month evi, work-seckerscan show that they havea genuine chance ofbeing employed, they ot be required to leave the host state. or this feason the Court said in Commission Belt that a Belgian fw requiring 1 work secker to leave the state astomatcally ‘on the expiry ofthe three-month peri breached Article 45 TTEU. Article 144)(6) eS Levin ITER 3S. > Pa ‘se 8] EERE Caen a ECR pr. 3. nine Cana th 2406 Vata 08 FCRI-AS, par 90. aac €-8986 Martine ain Fein Bain 89H ECR 26, pt, 3 Cae C8 Cll Sto ato Work and Penton 0] BRI par 2 CA AOI Thies a ehoteg 4am Mar 28, Declaration he Cnc amppanying Di 6/60 nd Ho 492 (98 Spe BL. (D3) » eeu Rae API EERI pe Gee 3585 Common pa 907 HR prs 1 ideeaa FREE MOVEMENT 07 PERSONS AND SERVICES [ERD confirms this line of case law, making ler that Union citizen work-sckers nd theis family members) cannot be expelled so long as they can ‘provide evidence that ‘they ate continuing to seek employmentand that they hee gene chance of being engage’ No time init i specie, 2, THE SELF-EMPLOYED ‘Ail 49 TPEU provides that ‘Yestitions on the freedom of establishment of nationale ‘ofa Member Stat nthe testy of another Member Sate shall ke proited. This gies nationals of ne Menaber State the right tocstblishthemches as se employed pevons In another Member State The Treaty dovs not define 'sellemploye but infty the Court explained tha, unlike workers, the selFemployed work outde&relatinahip of *ahordination, they bear the is for the succes ofa of ther employment and they are pald directly and in fall The case concerned Casch and Polish women woking, Prostitutes in the Netherlands They paidrent othe owner ofthe prema un ecened ‘monthly income (o between FL 1,500 and 1.800), which they declared to the te ‘hortis. The Court considered them tobe self-employed. The fact that some consider Prostitution immoral did not alter the Court's concasions;recogatzing the margin of discretion allowed to te Member State a these sensitive ates, the Court and tht ‘would mot substitutes own assessment for tha of Une Member States where an lleedly imumora activity was practised legally. Jay suggests that Article 49 TFEU permits individuals to engage ina wide range of economic activities other Member States and still be consuereseli-enployed. Anthe Court putin Baro ond Malia slferployed person could conduct ‘acti of on {industrial or commercial crate, sctiitis feraltsmen, oF activi ofthe professions ofa Member State° The breadth of Article «9 THEU was summed up bythe Cot in the leading cae of Gobhan* the concep of etblishment within the myaning ofthe Tcaly is thetefore avery broad ‘one allowing [Union] national to pata, on stable and continunus bats tthe sonomie ie of « Member Stat ther ha his sate of origin sd w poe thetrom But nt hi covnty Cae C1025 Sater Aan [107 EC Cine C1508 otk, Foe arya 2007 EER 05 pun 28 Te Treaty sas aeoperaooin es (SS RITE a i mg A 9 TE a ema de pan rar Eero Sasi 1309) Ec HD ars 18) wader ica, Gate Fc 9 ec 3905) rertheome arte iner 0TP ge eens eat entity mts i hee Secncinand hn ing easaReaee 8: FREE MOVEMENT OF WORKERS AND THE SELE-EMPLOVED 243 so contebuting to socal and economic penetration within the [nonin te pec of ‘etitiesas sl employed persona” 5, OTHERS DEEMED “WORKERS? AND ‘SELF-EMPLOYED" Article 78) CRD makes provision for those Union ciiens who are no longer workers or self employed to retain wotkor o self-employed statue in fou stations (a) where the individual cannot werk because s/he is temporarily incapacitated through illness or accident™ (b) where the individual has become mvoltardy unemplayed afer having been em ployed for more than one year, and has registred asa job-seker with the relevent employment office where the individual has become involustariy unemployed after having com pleted a fixed-term contrac of leis than one year oar having become iano luntarty unemployed daring the drs twelve months and after having registered 8a jobseeker withthe relevant employment oie (a this suation the status of worker can be retained orn estan sx months) ‘here the individual embarks on vocational training (unless the individal isin voluntarily unemployed, theretenon ofthe status worker rquirsthe taining tobe related to the previous empleyment.” ° @ The Court has added to this ist through theiterpetation of Arle 4S TFEU. Sant Pr ‘uneetneda woman who gave up woskard gave up seeking work dae tothe physical con straints ofthe late stags of pregnancy andthe affermath of childbirth. The Court ruled ‘hata wonran inthis tuation retained the status worker provided that she eturnedto work or found another ob within a reasonable period afer the birth of her child” RRED ON WORKERS C. THE RIGHTS CONF 1. INTRODUCTION Article 430) TFEU provides that free movement of workers includes the abalton of any Aisrimination based on nationality between workers of the Mernber Sates os rogards employment, remuneration, andother conditions of work and employment, Arti TTL then a that Fine meinen comprises the ight tox + acceptolfers of employment aciallymade + move feey within the territory ofthe Member Stats fortis purpose a enn a elec ccm savin wich esc arial eee rH the Sel Ov 206/258 [B00] OLB comedic, °C Cae 4099 Lac 20 ECR 4209 cone a8 au ore cairo] Eck Prac Sota of Se for Wik and Ponta C2020, par ad 80 Oremus Land Ber Wane) €C ine he dy eid song tte aoa free he st Mata Se rose hal hey ‘uy nate watin se ethenea4 ‘REF MOVEMENT OF PERSONS AND SERVICES + stay in the Member Stat forthe parpose ofthe employment + termini the Meier State after having been employed In addition, the Court has eecogalzal that workers have the right, derived directly from the Teeaty, leave their state of origin.” to enter the teretoy of enother Mens, ber State, and to reside and pursue an economic activity thee." The details of these rights wete originally expanded by three secondary mieasrex: Dinective 6/360" on the rights of entry and residence, Regulaion I612I68 onthe free movement of workers (Gov Regulation 482/1), and Regulation 1251/70" on the ight to remain, Directive (69/360 and Regulation 1251/7 along witha number of ther Union disctives, 8 ell a the amily sights provisions laid down in Articles 10-11 of Regulation 161268, have been repealed and replaced by the CRD 2004/38. This means that workers ey rights tnder Article 45 TFFU. the CRD, and Regilation 492/11 (ee fi, 73). Olen the Court ‘ill interpret the Treaty in the ight of he secondary legsation," However, athe event, ‘ofa conflict with the secondary legislation or where the secondary legislation does not, apply. the Treaty will ofcourse, preva Therefore migrant workers ean eart working before completing the formalities to otain any residence certificate because the ight of residence sa fundamental ight deriva from the Treaty end rot dependent upon the possesion of a resdence permit." Weekers’ employment rights are esp derived from ‘the Treat but futher dtall is povided by Regulation 432/11, which applies exch ‘ively t0 workers, as docs Ditective 204/54, which has the same seupe as Regulation 4$9222011" Thischapter wll focus on theae secondary measures, EMPLOYMENT RIGHTS Regulation 492/11 was orginally designed bothtaficilitate there movement of workers andthe famiiesand to ensue their iegration intothecomansnity ofthe host sate For ‘our purposes, Replat 49211 alls ink twopars (1) the ight of acess toa pst Cig Iiliy) on non-ainerisinatory terms (Craper ectlon Ty and (2) he right to equal eat ment while doing that jb (Le, while esercisng the rights of free movernent) (Chapter ase -1090 a Bands 0 ECRL-19, pas 19: Cane 41999 Bs (9s) EER 9 prs 104 Ee eee 90] BERT 3 pra 3 "Cake Sa a Bu 991] A-IS pr Cae C109 Terre 99) BER EMS, tea oy sp Ls + Germany 95] BOR a6, ph mT [om OFS Eta a, * Tire repay Carmo 635206206) * Ges Wan ad nL ECR pr ane -20608 IT ete Ilsa Cent a007BCR-8, pars. hr the Creframe MOVEMENT OF WORKERS ANDTHESELF-EMELOVED 245, pnt), addition, the basic principle of equal treatment contained in Article iso applies to migrant workers ‘Accesso Employment 3 I ens innit at 7 Tarrio teepen ey sot engoyd poh td opus Net ry of cet Meee Saenger ey a ional Te worker may conclude snd perform contract of employment in accord 2 ; ested. (a) Direc discrimination 3 vera Chapter probion epi riminon appl bi dy 4 Bescon meme emer cet dome the nated vray th nator weer natch ¥ Fe nines scary wh cl ca ue alan cy 7 Fr ered alcool rer mye dr derilaty ese 4 pee Are Sof Roun BU bleh oon owe cr anon cedninarttectonoradminielnepicis canbe Sate Beeson hershey opcaesorand of of emplonnet ete elpeistonts shes ptuccnoyment or ects cntona ap ici ntes he oe tao eh sy aetaiery mene eh ries TEED ln he Regulator ane CRD) tnd con be srl ai ty } sacral open smog dn yo Tay benno} i pani Gee Regulation 492/11 also identifies ad seeks to eliminate ather directly diserimin try batters to access to employment. For example, Article (1) provides that 2a tional provisions which restrict by nimber or percentage theemployment of foreign nationals in any undertaking do not aply to nationals ofthe other Member States “Thevefore, in Commission v France the Court sad that a Freach rule requiring 2 ratio of thiee French seamen fo one non French seaman on a merehant ship contr: ened Article 4(). Article 42) says thatif there ia requirement tht an undertak Ing iss to employ » minimum percentage of national workers then nationals af the other Member States couat as national workers. Article 6 adds that the engagement ‘on medical, vocational or other i fd recrulimen of e urbe sive wl depo teria which are discriminatory onthe graunds of nationality. However, it does permit the employer to requlce the migrant worker 1 take a vocational test when offering employment [A Some expe of pie pacts ate ite i A. 32 probing pei erat ‘Stina surements pions rom ther eer Sates abject ce for pleynent > ‘Soins ecstrtin employment les cane c-a1984 1995] PORI Hz * Ganec-28999 Commons ay 201] FC, ncn chant ce 97 HOR SS.246 FREE MOVEMENT OF PERSONS AND SERVICES (6) bndivct discrimination Ivy dseriminatory messin also breach Aik 45 THEL and the regulation unkegs objectively jst” o saved By one of he expres devogatons (ee i 72). As we have cen, inditect discrimination focuses onthe elect of measure, a point confirmed by Artile 30) of Regulation 492/1," which ‘makes explicit the principles formlated fn Amiel [45 TFEUT with regard, specially, to access to employment.” Article 3) says that provisions laid dow by national lav, regulation, or administrative actin ge practices will not apply where, "vhough applicable icrespective of nationality thet ex lusive or principal aim o eee sto keep sationals of ther Mermber States ava from ‘employment offered: Common examples of indirectly discriminatory rules ae these requiring either a period of service or residence in the hort eat before enjoying a pare ticular benef. Therefore in Sos the Cour found the refusl bya italian selection board to take int account a German applicant's previous mployinent i Germany tobe unjustified indirect discrimination," Similar Britsh rule Clns® that enierent toa job-seckersallowance was conditioal upon a requirement of blog habitaly res. dentin the UK was indivelly disrinintory, However, the Court found that the Britsh role could be justified the question of peportonaityof the national measure was et ta thenationalcourt™ Language requirements may well be fret discriminatory measures but can us lly be Jstied. This is expressly recogrized by the second paragraph of Arte 20) of Regulation 492/1, which provides that the principle of equa eealment doesnot apy ia respoct of ‘conditions relating to linguist knowledge rested by reason of the nare ofthe post abe filled This provision wee sueceefll relied on by the rsh government in Groene" "The ese concerted a Dutch woman who was refused a permanent posts & design college in Dublin, whece she had sredy been sachin, because she did ot speak Gaelic. Eventhough she did not need to use Gael oe he wor, the Court upheld the len guage reuirement because I formed port of overnment pic to promote the se ofthe Irishlanguageasameansofexpressingnasinacllure an idemity*Wsad tha since ed ‘ation was important for the implementation of such a policy the requirement fr teach. esto have an adequate knowledge of the rsh language was compatible with Article 3). provided thatthe evel of knowledge was ot disproportionate tothe objective pursed.” ‘The Court did say in Groener that the ish government could not require at heli tulte knowledge be acquited in Ireland." This point was developed in Angonese? The Ses Cat C1996 Kao Shin Has Hambrg 98) HGR Scan CaneC-NPSCoolions: eI ERI Ts ase 350 Cle CaS cording Case 28198 Ans [6] ECR I-49, poe 2, hs vs {oliowe inrespetofchalengestother sca erty bent ih inpouesesdane egerncn eg Patni Scarf as for Waka enon USE i rhe Spee Ca ect the eultns weres proportionate gna oeceiimate in ptecing he pps as aN (ies) Pai, Fae aed eae 2888 mM EER nappies J Prod 84 FRE,Ac FREE MOVEMENT OF WCREERS AND THESELE-EMPLOvED 247 concerned 3 requirement imposed 3 a bank operating in Bolzano (he Taian and med Hpeobtilned only in Bolzano, Angoncse an Kalian national wha had studied in Austria, a fue market also breach Article 45 TFEU (and presumably Regulation 492/11 and the CRD) tobe capable ofbing regarded as abe to Binder fre movement for worker asin Graf then the measure doesnot breach Artcle<5 TFEU" (@) The restrctonsobstacles approach In the ates offre movement of workers the discrimination approach is most firmly en trenched. However as we sain Chapter 7.he generale the flo ree move ent fpetsons istomovefromthenon-discrisnation approach athe restrietons obstacle tes even in cases where previously the Court would ave categorized the measure at ata. ts once rth mena etl ep Pens, © Cuec-aiis sf ce apm ™ Pa it OL © GaseC-IMaS8 00 FCRI-s.—_™ Pare B.SC2s FREE MOVEMENT CF PERSONS AND SERVICES ‘being indirectly disriminstory Ifthe Conrt finds there san ‘obsticle bssie px striction oF impediment to fee moventnt, i then examines whether the rule an bg objectively justified and whether the ste taken are proportionate, Despite the prepogs Aerance ofthe discrimination mode, ie movement of workers as not been immune ‘vom the development ofthe restriction’ approach as Lyk" demonerates, “The case concerned a Swedish rulereuiring an individual wanting to follow special teacher taining cours a a designated university in Sweden tobe employed a «Swedish school in order to complet hepatica -onponent of thei training The Cour sad tht the rale placed thos, tke Me Lys whe wat employed in a Swedish-speaking schoalin Finland) st disadvantage’ The lgishtion was thus lable to restr the freedom af ‘movement of workers which was prohibited by Article 43 TFEU. The Cour continued thatthe requirement tobe employed in aSwedish choo! constituted an obstacle fo res «dom of movement™ which eoald be justified on the grounds of preserving a iproy ing the edction system (Sweden had troduced this juegrantne because i ores 1 shortage of qualified teachers). The Cauet a thought the Swedish requirement way proportionate: the programe was temporary and the quirement tobe employed ina Swedish school asited inthe proces of monitoring and assessing the practical tage of the raining” However, the Court sald th regulrent had tbe applied exily end on a case by-case basi acount had tobe taken ofthe merits ofeach individual appiicant snd whether the individusl could be exempted from the practical part ofthe taining ™ The siento which states can ras can be road. This pont was oar inthe UK New Settlement Decision, Under th: heading “Inlspretation of Current BU Rules Section D a provider: i overciing reasons of public interes: make nese fee movement of workers ‘nay beret by manures proportionate othe legtimate alm pursued. Encourging recruitment, ducing unemployment, posting vulnerable workers and averting the ik feos undernning the staal of sci ecrly systeme ae reasons of public ims ecogised in he jrspradenceof the Court of Juice ofthe European ‘Union fa ths purpose based on casey ence nalts The significance of allowing the incisor of potentially economic justifications conse ced further n Chapter 12. In moa cases where the Court appiesthe restrictions approach it finds a breach ofthe Treaty. However occasionally t considers that the rule doesnot restit fee movement ann so there sno breach of Article 45 TFEU.” This can be acen in Burau where the (Courtsaid thatthorequirementofpassingan exam nondero fake wpa postin the pablic servieeonld notin sel be regnred asanahstacl'to ree movernent et rod yet an de Sco Verran (00]8: FREE MOVEMENT OF WORKIRS AND THE SELF-EMPLOYED 249, Case Study &:|: PORT AND THE FREE MOVEMENT OF PERSONS. sport particu the bgnaney word of profesional spat provisesan interesting casestudy iow the Pringles outined=ofnon-dacimination raat acest, jtfaton, and ro poronalty-have been wad 0 remove bares to the moby of pertamen and women. Feneverthaee running profesional sporthavenotavaysseen te bane of ppying Union [au Theyhave long cimed nt spertieepeci dueto it socal andeducatonal func, and to oukd na be styect to Unioniaw at al Geer the Cour dsagres!* ulatvlyeary mts casela the Cour mae ea that sport was to Unio but ony roar corte an ecaiomieactity Teefore non Marteothe Court (bracts of proeaonalorsun-proestoral onal players who were employed ox provided ‘sence within the cope of Aries 45 and FEL Hower, perhaps in ecg ofthe {plore osport the Cour ulin adefact exception oul for national eas Rebing tre content jusfetion htc aon panes were not commercial ate, sald {ha Uno la it prevent the adoption of es ecg free layers tom patpion Ircaran mache forearm whch arent lar eect, which ees the pater tue a content of sch mache a ae ths of poting etre on suchas forearm, Ftches beter tonal tes rom floret curtis’ The Court lo tha HN esti ten onthe scope ofthe provisions in question mathowere ran ited oi proper objective Therefore. epectf th naionaty of ayer hat can be ide bsg, Manchester United xh] arte Union ewe atonal sides (ag Erland and France) ar not “Thsnationateamrueisnathe ony exeptort carved out bythe Cour romthe provisions onthe ee movement of perions As we sa Oehige the Court sad that federation rues Concerning the scion ofthis or ternal competitions dd nt const a esti tiononthe provision of service and ofl ose Atl STFEU In thay the Court has enseed a conserable degree of autonomy fo sporting organizations tos the own ules. For those porting stustons which do al wrhn the cope of Union lhe principle of non-xrnintion onthe Bounds of ationtlty apples. Te ely cases concerned direct, {iscrimination. For example in Don the Cout sid that natona res providing Nat ‘ont those football players who ware alate to the tala Football Federation could pay In professional matches, afilation being ope oalan players oly, beached Urion lw Ths ruling led to a gendemersagrament betoun the Commision and the Union of urpean Footbal Aocisions(ULFA) under which national associations had to allow each frat cn ten flat este foreign players apc wo seelinatze forges in Cs C0 nd 0 py a ton ei) ER re octal song tek 2 teen gucnnneannga 1 fame sft te pihTDAH B npr Hi Vind Hat ‘ovmground and mtx ntbouring yond) wa spor le tha dl wat a white ope the Se es uta lca ericipacpetes abs we Goan Seige ine250 FREE MOVEMAN? oF PERSONS AND SERVICES domes gue matches fom the 982 Season-the so-called 312 et Ts was one ol the ‘os challenged in Boman Bosman vaselgan atonal emsoyedby the Began st von cD RC Lge When is contract expred he wanted ply erthe French second dvson cl US Dunkerque Because otraser eifcate had bee eto the Feneh Footbal Federation, oeman was et wth. jut ab forthe folowing season He cd manage to gn two short conzats wth Fench ‘cubs befor ending up a Olympic Chale. alga hi sion chi There was stong, ‘reumstanta evidence that Bosman was beng boycotted by the hl which ight have {empyed i" He argued tht the 32 rl contavene Atle 5 TFEU. The Cour ace, arguing that the pring of non-srminaion apd to anes contained inthe regulations ofspotng stociations which esrced the righ of nana of ther Member Sttesto take pat in football matches. iRsid hat We nationality eau relat the esence othe acti ‘of profession player f Union kw dd net apy otis tution, then Article 45 TFL won be oped of ts practical eect a the funametal ight ee acces o employment ‘ch the Tet conte italy on each workin the [Union rendered natn Despitelsingon ths pontn Bena he otal autores hat stl races for some sort tration quota to belted bea, hey argu inthe avec of uta young talents at able develop ith cb at hich they ate talned because thy cannot play nthe firstea hath ably of ops clubs buy upallofthetlant mean tht competion aration eels notbalancd tha raoal ean managers ever ter payg mratonallen es, hich ves the as cheiceo select payers an wthplayersmeving fo htc thre los fratonal ent of bs" FPA the nemational tal Indra, treforeproposed Inrocinga 6:5 ule which wal pe cho ela mcmer foe las who were nt igh play or the national arate cour of Wt cb Nt urn the Commission see that hs woul be conaryw Union law The rule aso oppoeed by some otal manages ie Arsenal Arne Weng who argued tat specators want =e the best otal _ajeraeat equal of Engen payers snotentanced byron rn them thence ‘wimprovetiarperfoemanctowin aplce inthe cl side The propos waster dropped {By cons. the European footbalassoition UEFA has introdcada Hometown payer ‘ue’ which applies to gares nthe Champion League andthe UEFA Cup™ Cubs compet inginthexe competitions must nea minimum number of aay tind players in thee squad rom the 20101 season te could not name mre than 17 hon-home grown ply. fr ore 21 in a squad of 2%, clus ate no obliged to ply these homegrown payers any mach UEFA defines local aired payersas thse who regardless of thar national, ‘Slovakian endball player emoyedby German cabin the conte! the Asoo Agree bet we ‘he Communes snd Satis Cane 40 Dana Handand Sars Spt 200) ESR [Che eat Cne-20905 Sean ato dain Ca 20 EERE 278 a TI Mel ing hn a aa qn Fk Sap 8. "in Pot. Spots aie fis ar gt veg Te Tne. 27 Now 27 Epes ipo the epee young payee 27609 il{RSF MOVEMENT OF WORKERS AND THE SELP-AMPLOTED asi nana her cub orby anther cbin the same ational asocation or at eas urs between the ageof and. UEFASbe therule ac ne step towards edeessing jon tested by the Basan aingthat te chest cabs have een abet toc st laos hich makes teaser ft them Yo dominate ath ational and European tons The home-grown player ne while potently inact crn” rectly tore than the 65 ale. The Cormmision Ras heer indcated that the rule can be sified said he objectives othe rule, namely promoting aiing pong lao and consolidating the bance of competion seem eptimate jects arya he ar erent to spring att. ana propervonae Inareacnt asthe Courthas gone beyond te acannon model, casing stead hater he measurchasesrictedthesorspesonsccestothe mara Thisca eseen eect heather ule at sue Boimae concerning trast ex, Acortng federation onthe expiry ofa contract with lab profesional octal oul not ply for Cb Cl Ahad released his repsatin This was veal conatioal on Clb B paying “gree et0 Cub A The Court sald hat eerie were no crimanatory becase they ap ples uly 'oransfers beeen cbs belonging to aferentnaonl associations within the ame Member Sate and were srar to thor governing trance hetween chi banging to ‘essre national assoation'® Nevrtees the Cour conclided tha ince the Wns ‘ety fect players’ acces tothe employent markt in othe Member Sates they were {apsbleof mpedngtree movement ol worors ands beached Atle 4 TEU se ig 74) Forth reason th Court ud thatUEFAS ues could nt be deomed comparable to thore on salingarangerers fx goods wo which the pinpen Keck applied The Court reached a Samia concusion in Lehtonen wherethe ses of dlgon basketball aston rohit {A asitbal cb rom fling players Homother Mere States (ho had ben anslered afer speci dt) national championship machen. The Court sid hat such ules wore Iablto restr the Reedom af movement players, hich was contrary to Arce 4 FEU" Lewis Olmpique inna the Courts that French colectveapeement eqn juno xpi a player aged between 16and 2 employedaratrine bya professional club ede aie cova sp, the end fs lrg pid, refesonal contract ‘i eco which waned him unde psn cf eng efor damages was yo dsourage thaplayer rom exercing hs right of ee meen under Ati 45 TU, Heving established a breach of Article 5 TFEU in Souman, Lehtonen and Olmlque lyomas the Court then ured othe question of justin In Lehtonen the Cau re bgnzed that arse periods could be justi on the ground of ensuring the veut of sporting compeiions” ae wansfers cul! substantially change the sporting sent of vine end A.B FP gute rab fe [08 New {Case 2236 [887] FR 497 Sen sie Dee 20071 09 Sonal Word ap (2000] OTL) ero sal tha thc ale otended pot fame (Uson] pnp are bl sho Washer USSA907S354 iin egal te 198 Potala Cay [200] “= CaueC-116%6 Lehtonen od Cars Clad ry Nor Bi ASL dation ree ee de sce set ho han] eR 8252 [FREE MOVEMENT OF PERSONS AND SERVICES ‘one o ther sein the cour of the champlonship. The Court notd hat ths woud ea tits question the compara of ress bmtwman the es taking arin tht chempane ‘hip and consequent the prope anctioning ofthe championship a3 whole" Hongo ‘he Court said that such masts had tobe propornate nd suggested that on the fac thswas no the cae because loser deadline applied to payers ram non-European ong counties without that eoparding competivons fom the fact Homer it began ty eegnizingthat port wa pei In iow ofthe consrabe sos! inpertanee of porting actives and in partie foot ballin the [Union teas maintaining balance Between the cabs by preserving certain depreo of equality nd sncerany stores and of encouraging crcl and waning of young players the vars foes had tobe acaptd aslepimate Inter worts. as Westheril explains, unlike he widget market where producer sim to gin ‘he largest marketshare, necesary by drng te val the market, sports based ong notion of muta intrdependen. im spor. opponents are ter to be beaten, bt the we Point ofthe endeaou destroyed if opponents ae, Merally, beaten out of igh” an the Court eon tat step taken oes this cult be tid onthe round of manta ng. comoativ balance between theta nl encouraging ang propane: Homever, the Cour then considered the proportionally question. ls thatthe Wanfer ues were ot an adequate meus of manaring facil ad competitive balance in he word offotblbecase he nthe prechues the richest cis from securing the sevcesot thebest players nord he preventthe aati of anc resources fom being dacone factor i competitive port. tus conieablakering the balance between bs ™ In espac ofthe argument tt tne ees helped cover the corto wining new alent {he Court accepted thatthe prosect of een ane fees was kyo encourage ft ‘ub to seek new talent and ainyoung players" Howeve sue hat because tse pr tle to predict wth any rainy the sporting fate young payers only inied number \wentonto pay profsdonally ove fees ere by nate contingent anc uncertain They were ao nelte tothe actual cost borne byes of raining bath ature profesionl players and ‘hose who would never play pofsonally The Court therefore conchid tha the poset (ase C-17696 thon 00] FCRL 24 pa 4 Fea De 2hon Spor rasanneidiabe Tet of Amerdam, where esenphenettbe see taney easter flausein te Declarant tot caacrea i Me tbe the moi of Earopean sorting nes ting south pectic art ape hota the pce pert es been ced san account inset ht fara. I er ab CaneC=S2508C pg Ln OI ECR art pre 5 Ft play lee cent evens ah pon of Soo po (200)FREE MOVEMENT OF WORKERS AND THE SELE-EMPLOWED 353 lof recevng uch Fees coud nether adc factor in encouraging the recutent and feng young players roan aden means of fancingsch actives, parca nthe fase fia dbs, For ther reasons he Court ected the otbal authori argumenson he basis of ui iy Fr g008 measure taco suggested tht he tance fe les went yon what as secs 1 tain the objectives Refer o Advocate General Len’ Opinion, the Court {xcoptedthat the same aims could be achieved a eat a fly by ote men hich it fot pede heedom of movement of workers He had suggested two more proportionate possbates (1) 0 negotiate electvey spaced mts for tesla ofthe pers 2 to fou te dubs receipts among the coe. Special thi meant tha part of the weomne ‘sie by acu fom teal iekets for tshome thes shod be dred a ther ‘bs Sima, the income received framing the ih to warunit matcher on televion ‘ul be divided up between lth cis. The Court heave conclod tht Article 4STFEU precede appcaton ofa lating transfer fe. Slr O}ympqueyonnas eCourse providing forte payment of co ation forthe cost of rang where a yong lee (Olive Berard) atheend ofhistann, Ss aproflsional conract ac (Neweaste Unite) ether han the one wach rained he {Cirmotque yon oul. n pencil betes the objective ofenruraging the ecu nent and waning of young pjers However once aga, Ye Court une! he cher do poronatebecause() the damages were ret calle In relation othe rang conte actly reseed by Olympus tt in lation to the tt les sled by he Gand he snountf ht loss was esabisedon te bas of tea hich were not determined naan ‘though Bosman as decid on he bis of Article 45 TFL, rumbling the background ore Aries 101 and 102 TFEVoncompestanwchhadsoinfvenedte Advocate General isin thearena of competion iow that mortfthe subsequent challenge ta spert ues ave been trashed oiinchiting complaints to ne Comnion abou FFA ues on fotallplaye gents UEFA regulation allowing nations football asoctions to black the broadcasting of footal™ and UEFA rule prohibiting mull owneship of kbs nthe word of compe ve simming two prtesonlsrimers were banned foto eas or tking Nandolone prohibited substance. Tey complained 2 the Commision that swimming’ anti-doping ‘ules infingd ther economic reds under Article STFU or services and Ales 108 {nd 102 TFEU on compettin law The Cris ejected ther compl an he Si es applied to the General Court fr the Commision decom tobe annulled They los. bore the General Court and againbefore the Court sic which whdesetng aside the ‘eundin A tgperand Stace, Spars andompelitin iw A reeling sey [0] Lat toxshaycortetee ed Cte, ac 30 Cnc 202) ER 05 pit could be dey ond cntoly there yor mange then feom cul cpt theo ganas heim tempt: I, a 0a Sst é Connon 89 Of C8 Ce TSM Mss Modis and Moen omonion 2004 FR 20, © Cae -90 on] ERS Sycrae Campeton and pee 307 92 Re254 {RUE MOVEMENT OF PERSONS AND SERVICES ‘Geer Cour’s decsion lo mand the aplication forthe annuiment of he Comision [eckion While the General Court adopid a generous aproach foward the autonomy of ‘pont the Couto justice ook ase the!” “The mere act that ar purely poring innate docs not have the tect of roving from teseope oft Treaty the person engaging nthe activ governed by thet eo ‘ts the enduring problem othe Court as Weather pus. Sporting us ve an mx nomic effect Bathout some inden eshte ho sport The dosmen judgment tarstrmed pewsoral loeb changing dhe composon of ny tex and puting ond oar eer plays out contract" Chie have espe by ington longer conuacts, with mare previously use fortran feesbeng verted into wage packets making rlionares out of many European layers But fo Jan-Mare Boxman ‘he gation i not py. He was they i debt ne wth as profesional career ove ane is mariage tatters he moved backin wh hisparents and even had spel in pison In e197 Some othe wok’ top players planned estonia fr him in darcalona Howes, ‘heSpanish and objectedtothe mutch bing Bouman forthe argerarr aforegh Payers in the Sparta league The mate di wrtualy go ahead but Boxman ame coud "ot be ofl connected withthe event!” An out-of-court eet of €312 000" yas Fina ps by the Elan oobalauthors in Decrber198-more than eg yer ter theexpryofhis contact. [On & more postive ote, the foun gen by he Courtin oman provi he anew forthe footbag to negotiate neta rulen A eae care in 2001 when ruleset grey UEFA, FA adhe Cominon wich, ir ala provided fr ysem of raring compencation to encourage nd evar he rng efor of cls in paul males for payers age¢ under 23 "he creation of salary mechansmeredarbug a sentir proportion of come to chibsmeovedinthe traning and eccaton ofa layer, tigate che > the eA one blo parted pe sanom ard a thr Bovine mi-ason w tha nit of oe rater pr payt season + minun and maximum dain forractofrespectiveyonean ve es ase 51)08 sa Moding and ej 206) ER pu. nnn nigh nant ahaa Pap ‘on Bosman i At Pures Maduro and L.Asolat feds The Put and Puta of EU Lav (Onn Hartnore Comm sony Il! of nig rene by hat re oe Prone 6 ramen ream 0 201" nan Keren Fir ert ots n Fopevenofncometo Frei Hit-seacon window Arde yeas [on Since the the Con eeesualy the Cornmton approved UEFAS Final Fa Pa (FF) Repuations fest 2009, intended o preven profesional football cbs spending more than they wee tod UEFA wsued a joint statement suggesting tht the FFP ‘While Chaper I Setion 1 of Repulstion 492/11 concerns nil acess o mpl Section I cnceras the ‘exercise’ fas opposed to seces to) employment ies rules com ‘ering terms and conditions af employment. Ariel 7) states thata migrant worker vst nt be eae: om ational worker... in espectofany contin of employment end work should he become uenplayed particular as regu ensneration, dims, a instatementor employment Most of the case law concerns indirectly discriminatory measures, For example in Allué and Coonan’ an taian law limited the duration of contact of employ imposing the same limitation on other of foreign-language sasitant, with 25 per cent of foreign-hnguage assistant were Italian al als the law essentlly concerned nationals of other Member States It was indieetly discriminatory and could not be justified. wwe have already sen, residence requiemen msnatory. Son Clean CaP” the Court fd tht an Austcian rule equiting bus sess managers to be resident in Austria belore they could work in Vienna breached cle 45 TPRU, It noted that the rule was liable operate mainly tothe detriment of nationals of ether Member States since the maorty of non-residents were foreigners: Austria sought to justify the residence requirement om the grounds thatthe manager needed tobe resident tobe effective inthe busines, to be served with a notice of any fines imposed and to have those fines enforced aginst him. The Court found these re ao likely to be indiectly dis residence requlrement ws ether inappropriate 0 what was necessary for that purpose,” Iso hive the aim prsued or went bey note tha as serving a notie ofthe fines at the registered office ofthe compsa6 REE MOVEMENT OF PERGONS AND SERVICES Length of service seguitements may also he indirectly discriminatory. In SchOninge -Kougebetopouou.™ the Court found that collective agreement providing for prom tiomon grounds of seniority, but which toleao account of service performed in nother Member State, manifestly worked ta the detent of migrant workers and so breached Article 45 TEU, The Court rejected the jsficaions based on rewarding loyalty 49 the employer and motivating employees bectuse, onthe facts, service with other legal ‘eparate employers was taken into account and so the loyalty argument could not Be sustained." Ail 714 of Regulation 492/1 providestha clauses fom a collective agreement or contrat which discriminate agunst workers from other Member States ae null and ‘oid soar as they ly den or authorize dscriminatory conditions” Unt the pats {vend the agreement to ciminate the diciminaton, the migrant workers enjoy the sami cules a those which apply to nationals" () qual treatmentin respect oftax advanages [Aetile 72) of Regulation 492/11 provides thet worker willenjoy the same sola and tax {vantages as national workers, th ibs of Article 72) have caused serious problems forthe Cour ase strugles to reconciles ersprudence on free movement and the cre ation ofa single markt with two ofthe mos sensitive areas ofnational competence—the well tate and taxation; matters which rationally havea steongly terstorial dimen Som, We begin by considering tation, where there has ben a proliferation of eases (0 Diernta treatment of esidents and non esidents lnernational tax lw generally envisage tha residents and non-residents cam ard sould betreated diferent intermsoftanation: grerallyresidentsaretaxed on ther worldwide ‘income while non-residents re axed merely theincome they receive inthat partial Sate Thecoellaryfthisis that the tae of residence which als offers the individual ‘arious tx elif Yet under EU la, at We ave see, discrimination onthe grounds of Tesidence i prima faci unlawful The Cour of Justice has ried to square the circle by Saying thatthe circumstances of residents and those of non-residents are generally not Comparable andso the principle equal teeatent should not apply. Haweve hon the “beste Mao Bek mp Ronevopdu94] ECR I-47, ur 3 pling analogy he dn 157 180 eve bon Nite te nd Moar Hamre 9 he Curt sd ha re prpors ofthe aloe amore 95] ECR fe Th{8:YREE MOVEMENT OF WORKERS AND THE SELF-EMPLOYED 257 Re en pes parable he wuld be dcnlnory to teat thet aon diferent Bc yrtelly etn he cxf ont wore ae Schnee" cae hoe mi chuece gan nna ed gn with ey but woke cian sneer erat apes mre ajc Geman nce x bate Gece rain een wich we atic The Cou ed Mes to-elent apepe ne evel osc set Us ave nt sae a Beeman was ject Inthe meson ar een ht ae dl he =a re tce Reuse the uracv rinsed mesos we ona Yaad} he Court said thatthe German cules gaverieto discrimination because the non-resident ‘es faxpoyer did not have his personal and family circumstances taken into account eter in vie BS ose els esate ate rn oops foe rsa aid” Sons ta oer ed bade meses ton a ve chnyyen” he Geman ls nf baced Arie 8 TFEU an could be uti deux Wile the Court required Germany take Schumackr’s personal and fly len cumstances Into acount, Resnebere went further by reglrng the state asserting re nlite texation to extend vo non-res dents, conaldeedt Be ta comparable stu the ttn to vestdent al tx advantages on the ste terms residents Te ese con S fered» Dutch ciuen working tn the Netherlands but living i Belgium, where he ‘sine move than 90 per cen of his income, Had be been a Dutch eben he would fave enoped tox leon his home based on the deren betwen the etal vale f {hchouse andthe terest pad onthe mortgage Siace he lived ouside the Neterlands rH te enjoyed some tax elie on his ore ut lover rate He argued that, owing ide Stuonacer hs stustion wns cannparate to that fa resident an so he shold hae lar enjoyed the higher lyl tx elie. The Court agree and found tha the Dutch ees sl treiced Arie dS TFEU a Ae Vrding expla the fc of the alas that Mr Reanberg managed to have by tuscakeapdeat While the Dutch taxsystem provided generous subst for one. a cupid hosing through is ax ystem,the Belgian te dnt. In the Nether we the tx suid wos wltinately rected in igh house prices, estimated a between 15nd 90 percent which was ol the eae in Beg Therefore the consequence othe “ Courts decision was to ive Mr Renneberg the beet of the higher etch ax adetage a ‘lee enjoyedivig nchesper Belg ously Tals san lusteation of the robles (dented already ofthe Court applying its ingle market est law to situation which cue ©2998 148 BOR 122, Seale Cae CASYOE Tt Fo ie 2000 TR 255, ua CE Cone C397 Gand Ft hac afer | BERS pr. 3, once ered up at ade nt tht te 90 pr ce al 0 Para 28S hn Case C=15209 Rt Gest etl ime ses 1 Sistncrino nani ECR 7S, po rt or238 FREE MOVEMENT OF PERSONS AND SERVICES arises heeause oa disparity between national ax systems” This problem i exacerbated ‘bythe application ofthe restrictions Sased approach (a) therestrictonfobtace pponch While most ofthe tax cases concerning Article 45 TEU are considered under the dis «rmination approach, the Cour stared toapply the restrictions model, xpectally whee ‘the home state rule was under challenge. This can be seen ii Commision v. Germony (ubsidy on dvellings).™ which concerned German rule granting subsidy for once, ‘occupied dvellings to which indivials liable to unlimited taxation of income in Germany vere entitled, provided that the dvellings built or purchased mete stated {in Germany, The Court found that rovisons preventing or deterring 2 ational of Member State from leaving his county of origin n onder to exeeise his Fight fecdons ‘of movement constitutean obstacle te hat reedon.. prohbielby Arles [45 TFEU] and {49 TFEU}" The Court said that while the sim of encouraging the building of