Rights (Residence) CD 04 replaced 68/360


The rights of free movement for workers are under Article 45 (3) TFEU[1].  Through case law it is easier to gain a better understanding of the principles that Article 45 TFEU lays down. Under Article 45 (2); it has abolished discrimination in employment based on nationality between workers of member states. Article 18 TFEU reinforces this concept by stating; “Any discrimination on grounds of nationality will be prohibited. Article 7-9[2] prohibits discrimination on grounds of remuneration, dismissal or re-employment on becoming unemployed. In the Wurttembergische case,[3] the court of justice concluded that it is indeed a breach of the regulation[4] to subject differences in conditions of pay, dismissal etc in regards to migrant workers and national workers in member states. The court of justice also took the view that it was indirectly discriminatory for German nationals to qualify for higher allowances than people whose family home was not in Germany.[5] Article 45 (2) also has horizontal direct effect as illustrated in the case of Angonese,[6] Mr Agonies was required to obtain a certificate of bilingusilm to prove his linguestive knowledge in order to participate in a requirement competition. The courts took the view that the prohibiting of discrimination musty be valid towards individuals too in regards to nationality. Thus, concluding that the requirement amounted to discrimination which was not in line of Article 45.[7]

The emerging concept of EU Citizenship has been the main drive behind the development of the free movement of workers which emerged from the treaty of Maastricht in 1992. EU citizenship is not determined by EU law however, it is determined under national law. Article 21 states that: ‘every citizen of the Union shall have the right to move and reside freely within the territory of the Member State, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give them effect.’ These limitations are set out in Article 45[8] which will be discussed later on. .[9] In the case of Baumbast and R[10] the courts held that Article 21 TFEU was directly effective in both of these cases where in both scenarios, the court held that without a primary carer for children; it would deprive their rights under the regulation.[11] Respect for family life is a fundamental right in the eyes of EU law and refusing this right infringes Article 12 of the regulation.


Article 21[12] extends Article 45 TFEU to non-economically active persons however, in regards to social security, limitations still apply.[13] This is illustrated in the case of Martinez Sala 1998 where the court concluded that a national residing in another member state was able to rely on EU citizenship under Article 20[14] thus, entitled to social security.[15]

Equality of treatment for workers is explained in the Citizenship Directive.[16] In regards to residence of citizens, not choosing to exercise your free movement rights can prevent the courts allowing a resident permit[17] however, in the case of Zambrano[18] he did not have a work permit however, he was working under a full time contract. Doing so, he had resources to provide for his family. The court concluded that if he was forced to leave the Belgium the children would have to leave too. This would deprive them of a ‘genuine enjoyment of substance of rights conferred’ by that status and not only that but also deprive them of their citizenship rights which would not be viewed as equality of treatment for the worker nor his family. Thus, he was allowed to remain in the member state.


[1] (1) To accept offers of employment actually made, in another M/S (2) To move freely within territory of M/S for this purpose (3) Right to stay in a M/S for purpose of employment in accordance with national laws (4) Right to remain in the territory after employment (subject to further regulations)

[2] Regulation 492/2011

[3] 15/69 Wurttembergische Milchvertung-Sudmilch A.G. –v- Ugliola [1969] ECR 363

[4] 492/2011

[5] 152/73 Sotgiu –v- Deutsche Bundespost [1974] ECR 153

[6]  C-281/98 Angonese  –v- Cassa di Risparmio di Bolzano 2000 ECR I-4139


[8] TFEU (3)

[9] Steiner book p 515

[10] C-413/99 Baumbast and R. –v- Secy of State for Home Dept. [2002] ECR I-7091

[11] 1612/68

[12] TFEU

[13] Margarot book p 377

[14] (2) TFEU

[15] Margorot book p377

[16] 2004/38

[17] C-434/09 McCarthy

[18] C-34/09 Zambrano –v- ONEM
[2011] ECR I-01177