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The legal framework

September 26, 2016

Freedom of movement (including for workers) is enshrined in primary European law and fleshed out by EU directives and regulations.

A compass in a woman’s hand.

Freedom of movement for EU citizens is one of the European single market’s four fundamental freedoms; it encompasses the right to move freely in the European Union, to enter any Member State and to reside there. It is enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU), i.e. in primary European law, the highest source of law in the EU. In particular, it prohibits discrimination on the basis of nationality (Article 21 TFEU). The right of free movement is regulated in Directive 2004/38/EC (the "Free Movement Directive") and has been transposed into German law by the Freedom of Movement Act/EU (Freizügigkeitsgesetz/EU).

The Free Movement Directive (referenced below as Article xx) and the Freedom of Movement Act/EU (referenced below as Section xx) provide for a spectrum of residence and equal treatment rights for various groups and circumstances:

  • Persons who have permanent resident status with full equality of treatment, which is generally acquired after five years of uninterrupted lawful residence (Article 16; Section 2 (2) no. 7)
  • Persons who have the status of worker (whether employees or self-employed persons) with full equality of treatment, or persons who retain the status of worker in certain circumstances (Article 7 (1) a); Section 2 (2) no. 1 or Article 7 (3); Section 2 (3))
  • Non-workers with sufficient resources and health insurance cover (Article 7 (1) b); Section 2 (2) no. 5)
  • Jobseekers generally have a right of residence for six months, or longer if they have a genuine prospect of being hired (the European Court of Justice’s “Antonissen” judgment [C 292/89]; Section 2 (2) no. 1a)
  • EU citizens have an unconditional right of free movement for their first three months of residence in Germany (Article 6; Section 2 (5))
  • Family members of persons in the above groups (Articles 6 to 18; Section 3)

Freedom of movement for workers under Article 45 TFEU and freedom of establishment within the EU under Article 49 TFEU are special forms of the free movement of persons.

The right of free movement for workers under Article 45 TFEU is fleshed out for migrant workers and their family members by Regulation (EU) No. 492/2011 (the "Free Movement of Workers Regulation"). In particular, migrant workers may not be treated differently to national workers in terms of their access to employment and their working conditions, and they are entitled to the same social or tax advantages. Likewise, workers from other EU Member States may not receive less favourable treatment than national workers in terms of access to housing, vocational training or assistance from employment offices.

The new Directive 2014/54/EU contains provisions facilitating the practical enforcement of these rights to freedom of movement for migrant workers and their family members. It does not apply to workers who have been posted to Germany temporarily.

The European Court of Justice has ruled that a worker is someone who pursues a genuine and effective activity for and under the direction of another person, and receives remuneration in return for doing so. The question of whether a person has the status of worker must be determined by taking into account all aspects of the activities and contractual relationship in question. Activities on such a small scale as to be regarded as purely marginal and ancillary are not considered.