SEMINAR GROUP 6 /IOANNIS KATSAROUMPAS

Part A:

‘Bosman and the subsequent case-law on non-discriminatory obstacles in the context of Article 45
TFEU is an example of an incoherent and dangerous judicial activism.’

Critically evaluate this statement. Your answer should include a reference to relevant legal
provisions, case law and commentary.

Bosman, (1995), enabled the ECJ to aid the securing of free movement of workers within the union,
by determining that measures that ‘preclude or deter a national of a MS from leaving his country of
origin … constitute an obstacle to that freedom even if they apply without regard to the nationality of
the workers’ (para 103). This is known as a non-discriminatory obstacle. This essay will critically
evaluate: the case of Bosman itself, the case law following the seminal judgment both in and outside
of the net of what are considered non-discriminatory obstacles, and engage with critical academic
perspectives. It will be argued, throughout, that the judgment in Bosman was necessary, and it helped
to provide an extra layer of direct effect.

The ECJ ensured the purposive interpretation of Art 45 TFEU in Bosman, so that footballers could be
afforded the freedom of free movement of workers, the Court also held that any provisions that
preclude or deter a national from leaving their country of origin will constitute a barrier to free
movement of workers. Whilst understandably a considerable broadening of the scope of Art 45, it was
in the Court’s view that it was necessary to do so, as the case was incomparable with the selling
arrangements found in Keck and Mithound. Without the interpretation of Bosman in such a broad
sense, the only identified barriers to the single market in the EU, would be direct and indirect
discrimination. Non-discriminatory obstacles, ensure the ability of a large swathe of workers can
access the same level of free movement of workers, that every citizen of the EU is entitled to, as per
Art 45(1) and (2). Ergo, the single market is further protected from barriers disengaging workers with
itself, enabling a wider net of workers to be subsumed into the single market. However, Pearson
suggests that the ECJ’s idea of non-discriminatory obstacles, and Commission’s regulation of
excessive transfer fees, to ultimately encourage the free movement of workers (of footballers) failed,
citing the £2.5bn spent during the 2014 summer transfer window as evidence of such. This is
compounded by the issues that many footballers are essentially ‘trapped’ into their contracts, yet are
free to move to another club when this contract expires. Overall, a purposive approach was necessary
to ensure the widest possible allocation of the right to free movement, yet falls short of the envisaged
protections for workers in management-dominated industries, (Lee, 1997).

The subsequent case law that adheres to the principles laid down the Bosman judgment, do set clear
boundaries of the interpretation of Art 45. Such as in the case of Weigel, where negative tax
consequences, for an EU citizen in a host MS, were argued to constitute a violation of Art 45. This
seems incompatible the statement made by the ECJ in para 103 of the Bosman judgment, as it would
preclude or deter EU nationals, from exercising their rights in that particular EU member state.
However, the ECJ held that this was not a breach, as it did not place the EU citizen at a greater
disadvantage – both the nationals and the EU citizen were subject to the same taxation level.
Therefore, setting the outer bounds of Art 45 to not provide for different levels of taxation for EU
workers, despite if higher or different taxation would deter or preclude them from exercising their
right of free movement. However, the higher payment of social contributions for workers moving to
another MS in Terhoeve was held to be a breach of Art 45, seemingly setting an inner boundary of
social/tax related duties imposed on migrant EU workers. Therefore, by comparing Weigel and
Terhoeve, it is possible to derive that one conclusive boundary of Art 45’s effect, would be the
imposition of a higher additional tax, not just a generally higher rate of taxation. Overall, whilst
constricted for detailed analysis, it seems clear that the ECJ has a coherent framework being built at
least on the concept of civic duties and taxation in host EU member states, but clarification is
desperately needed.

Without the test of proportionality, the Bosman judgment could be considered as incoherent and
judicial activism. Para 104 provided the proportionality test of non-discriminatory obstacles: Is the
obstacle (transfer rules in the Bosman case) pursued with a legitimate aim compatible with the
Treaty? And were justified by pressing reasons of public interest? Lee argues that the rules involved
in transfers widen a gap between rich and poor clubs, affirming the ECJ’s decision that the rules
weren’t proportionate means of securing a legitimate aim. Without this strictly construed form of the
proportionality test, Bosman would have an extremely wide scope, and not enough boundaries to
ensure certainty of law. This is significant as it shows the caution, rather than activism, the ECJ
expressed in the Bosman judgment.

In conclusion, the case of Bosman and its subsequent case law, is not incoherent nor a form of judicial
activism. The court utilized it’s famed purposive, or teleological, approach to determine the purpose
of Art 45, in order to ensure free movement, one must be free of discrimination but also any obstacles
to that freedom. Whilst Pearson argues that the EU ultimately failed their mission they embarked on
in Bosman, it is important to note that the creation of non-discriminatory obstacle ensures and protect
the market access of many more EU citizens, and right holders. The case law that follows Bosman,
prima facie looks to be inconsistent rulings, both with Bosman and Art 45, but upon further analysis
show to be an inner and outer boundary of the Bosman principle. Lastly, the court in Bosman were
sure to include to proportionality test to ensure cases like Terhoeve and Weigel were held to the
principles of EU law as well as Art 45. Therefore, the case of Bosman does not represent incoherent
law nor does it purport to be judicial activism.
Part B:

5.
a) Max, a Portuguese law student at the University of Amsterdam and a father of a young daughter,
is undertaking a placement year at the JusticeSolicitors Law Firm in Amsterdam. He works as
an assistant to a junior solicitor for 35-hours per week on a £350 monthly salary. During his
work placement, he is still registered as a student in the University, pays a discounted tuition
(20%), lives in university accommodation, and retains the right to access the library and IT
services. Max applies for a child benefit available exclusively to workers. His application is
rejected on the ground that he is not a ‘worker’ under EU law.

b) The Spanish Government considers the introduction of a new Spanish language scheme for
workers for strengthening social integration and social cohesion. The Cabinet is currently
reviewing the legality under EU law of two measures:
1. Introduction of an annual Spanish Language Test for all workers without a University
Degree from a Spanish or Portuguese institution as a condition of employment. Failure to
achieve a satisfactory rate (95%) would require attendance of a free mandatory Spanish
language course.
2. For maintaining high excellence standards, all teachers of these mandatory courses, run
by the Department of Education, should be either Spanish nationals or degree-holders
from University of Madrid or University of Barcelona.

c) Tonia, a Danish citizen working as a clerk in a bank in Germany, is married to Steve, a US

national. They have lived in Germany for three years. Immediately after Steve’s conviction for
undertaking preparatory acts for an act of terrorism (downloading internet materials on ‘how-to-
make-bombs’ and forming a far right-wing group to target mosques), the Minister for Internal
Affairs orders her deportation on grounds of public security and public policy.

Advice Max, the Spanish Government and Tonia.

Max:

Max falls within the scope of Article 45 TFEU as he is a Portuguese National, residing in another EU
Member State: the Netherlands.

In Max’s case it is pertinent to assess his status as a worker under EU law. In EU law, the ECJ has
declared themselves the ‘hermeneutic monopoly’ on the concept of worker in EU law (Hoekstra,
1964) to avoid individual Member States (MS) modifying the meaning to narrow the scope of who is
defined as a worker. Lawrie-Blum (1982) provides a succinct 3 part test as to what is a worker as for
the purposes of EU law, they would; perform services for economic value; for and under the direction
of another; in return they receive renumeration. As per Levin, the level of remuneration is irrelevant,
unless it is evidential that the work is marginal and/or ancillary, as per Raulin (1992). The Member
State in Lawrie-Blum argued that the motive (of the move) was to gain a social benefit, whilst the
Court ruled that this was irrelevant in this case, in Brown the court distinguished itself from Lawrie-
Blum, ruling that whilst the individual was a worker for the purposes of EU law, the work itself was
‘merely ancillary’ to the degree and the worker was not entitled to the social benefit, a maintenance
grant.

Following the three-part test in Lawrie-Blum, Max clearly performs services of economic value in his
role as an assistant to a junior solicitor and is clearly in a role of subordination to the junior solicitor
and Justice Solicitors Law Firm. Max also receives a £350 salary, satisfying the need for some level
of remuneration, as per Levin. Whilst the work itself cannot be considered as marginal, Max works
shy of a full-time work week at 35 hours, since he retains his student status it is unclear as to the
primary status of Max: worker or student. In the case of Brown, pre-university degree related work
was ruled to be ‘merely ancillary’, however Max’s work is not ‘merely ancillary’ nor simply work
embarked on to qualify for an educational course, but rather intrinsic to his to the completion of his
degree.
Therefore, it is likely that Max would be considered a worker under EU law, and there is a strong
indication that the ECJ would find the work Max undertook as not ancillary but sufficient to gain
access to the child benefit.

Spanish Government:

Article 45 of the Treaty on the Functioning of the European prohibits any discrimination, XXXX (), it
must be assessed whether these measures constitute a barrier to the freedom of movement of workers.

The first measure constitutes an annual Spanish Language test as a condition of employment, failure
to attain 95% or above will result in a mandatory, albeit free, Spanish language course. This measure
indirectly discriminates against non-Spanish EU citizens as it would be more easily satisfied by
Spanish nationals. However, Regulation 491/2011 does provide a linguistic exception, whereby equal
treatment need not apply to conditions that relate ‘…to linguistic knowledge required by reason of the
nature of the post to be filled,’. Groener and Las set the parameters for what is a justified measure of
indirect discrimination. Groener provides that the level of linguistic knowledge required must be
proportionate to the objective pursued, Las states that despite a legitimate aim, i.e. social cohesion and
social mobility, a requirement that is ‘liable to have a dissuasive effect’ on non-Spanish speakers
would be considered a barrier to free movement of workers. The ECJ would likely find the aim of the
Spanish Govt to be legitimate, however due to the high threshold require to pass, 95%, and the tests
mandatory nature, it is likely to follow the rulings in Groener and Las, the level of knowledge
required is unproportionate and liable to dissuade non-Spanish speaking EU citizens from exercising
their freedoms.

The second measure requires the teachers of the upon-failure mandatory language course to be
Spanish nationals or degree holders from one of two universities in Spain. The measure is ran by the
Department of Education suggesting that it might be subject to the public service exception to Article
45 in Article 45(4). Commission v Belgium provides the precedent for whether the public service
exception would apply, the position must: involve a degree of exercise of state powers; entail duties
designed to safeguard the interests of the state (Craig & De Burca). A teaching position with the aims
state may constitute the latter part of the test, but the former is nonapplicable to teachers, a position
supported by the Commission who, in 1988, suggested that rarely would ‘teaching in State
educational establishments’ invoke Art 45(4), (OJ C72/2).

Since the measure is not subject to the public service exception, it would be considered an indirectly
discriminatory barrier to free movement of workers. This is due to the measure avoiding an absolute
nationality requirement, through the additional university condition, however, both universities are
Spanish, therefore being more easily fulfilled by Spanish nationals. Additionally, there is no way for
EU citizens to prove their aptitude as per Directive 2005/36/EC.

Tonia:

Tonia is facing deportation from an EU member state to her national EU member state due to
proximity to terrorism, a national security threat. As a national of an EU member state, she has EU
citizenship as per Art. 9 TEU and Art 20(1) TFEU, and is afforded protections under Directive
2004/38/EC, including against expulsion. As Tonia has resided in Germany for 3 years, she falls short
of the 5-year requirement for permanent residence in Art 16(1). Art 27(2) provides that an expulsion
order must be based on the personal conduct of the individual, Tonia’s personal conduct is not
analogous to their spouse, Tonia is a bank clerk with no criminal record. As per C-304/14, a expulsion
order cannot be made on the basis of an individual’s criminal record, and by extension by an EU
citizen’s partner. The case also asks if the order is proportionate, and compatible with the ECHR, in
Tonia’s case it seems a disproportionate measure and a violation of her fundamental human rights.
This is explicable through a lack of assessment of varied and individual factors as per Art 28(1), or
any consideration of Tonia’s personal conduct as per Art 27.

Overall, it seems that the expulsion order served to Tonia is in violation of her rights as an EU citizen,
for the reasons outlined above.

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