pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en
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Free movement of persons, free movement of workers, prohibition of discrimination based on
nationality in employment and occupation

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Internal market - one of the objectives of the Union
nThe internal market is based on four freedoms:
nFreedom of movement of goods
nFreedom of movement of persons
nFreedom of movement of services
nFreedom of movement of capital

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Historical Backround
nAfter establishment of the European Economic Community only persons performing an economic
activity were entitled to the freedom of movement of persons. Economic activity
nas employee
nas self-employed
nAt the beginning of 1990s free movement was enlarged to other groups of persons (Students, persons
after finishing the gainful activity…)
n1992 the Treaty of Maastricht - the citizenship of the EU – enlargement to all citizens of the
Union and their family members.
n

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Legal Regulation of Free Movement of Persons
nPrimary law:
nTreaty on Functioning of the EU
nProhibition of Discrimination and Citizenship of the Union  - Article 18 (former Article 12 of the
Treaty establishing the European Community) lays down prohibition of discrimination based on
nationality.
nArticle 20 (former Article 17) - free movement for citizens of the Union
nArticle 45 (former Article 39) - free movement of workers
n
n
n
n

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Article 45
n1. Freedom of movement for workers shall be secured within the Union.
n2. 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
n3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health:
n (a) to accept offers of employment actually made;
n (b) to move freely within the territory of Member States for this purpose;
n (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;
n (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.
n4. The provisions of this Article shall not apply to employment in the public service.

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Legal Regulation of Free Movement of Persons
nSecondary Law:
nDirective of the European Parliament and of the Council 2004/38 of 29 April 2004 on the rights of
citizens of the Union and their family members to move and reside within the territory of the
Member States, replaced legislation from 1960s
nRegulation (EU) 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom
of movement for workers  within the Union, replaced Regulation of the Council 1612/68 of 15 October
1968 of free movement of workers within the Community

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Personal Scope of Application of Freedom of Movement for Persons
nCitizens of the Union
nTheir family members
1.Spouse
2.The partner with whom the Union citizen has contracted a registered partnership on the basis of
the legislation of a Member State, if the legislation of the host Member State treats registered
partnership as equivalent to marriage and in accordance with the conditions laid down in the
relevant legislation of the host Member State
3.The direct descendants who are under the age of 21 or are dependants and those of the spouse or
partner
4.The dependant direct relatives in the ascending line and those of the spouse and partner
n

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Free movement of persons includes:
nRight to leave the territory of the Member State
nRight to entry on the territory of another Member State
nRight to move within the territory of another Member State
nRight to stay within the territory of another Member State

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Notion of worker for the purpose of free movement of workers
nThe term worker is not defined by primary and secondary legislation
nInterpretation by the ECJ, case Deborah Lawrie-Blum v Land Baden-Württemberg (C – 66/85),  3
characteristic features of worker:
n 1. provision of services for certain period of time,
n 2. under direction of another person,
n 3. remuneration (wage, salary),
nThe gainful activity must be effective and genuine - case Bettray v Staatssecretaris van Justitie
(C – 344/87)
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Limitations to free movement of persons
nPublic Policy
nPublic Security
nPublic Health
nLimitations to free movement of workers
nPublic Policy
nPublic Security
nPublic Health
nEmployment in public service
nLimitation for citizens of new Member States – laid down by Treaties on Accession