CYIL 2015

HARALD CHRISTIAN SCHEU CYIL 6 ȍ2015Ȏ early case-law the CJEU made it clear that the decisive criterion of free movement of workers is the exercise of genuine and effective employment, which is characterized, among other things, by working performance under the direction of another person and remuneration. In the Levin case 5 the CJEU explained that the status of a worker within the meaning of EU law may well apply to a person whose income does not reach the subsistence minimum in the host Member State. Therefore, persons employed part time, interns and au-pairs may claim the right to free movement of workers. 6 In the cases of Vatsouras a Koupatantze 7 the CJEU synthesized previous case law and recalled that genuine and effective work has to be distinguished from such activities which are so limited as to be purely marginal and ancillary. A worker under EU law claiming his right to free movement may also be a person who previously was an employee within the meaning of Art. 45 TFEU and is, temporarily, unable to work due to illness or injury or is registered as involuntarily unemployed. 8 Significant problems of interpretation have occurred with respect to the status of job-seekers who have not yet been economically active in the host Member State. Article 45, paragraph 3 TFEU expressly regulates the right of migrating EU citizens to accept offers of employment actually made and to move for this purpose to the host Member State. Article 14, paragraph 4 lit. b) of Directive 2004/38 specifies that an expulsion measure must not be adopted against EU citizens who have entered the territory of the host Member State in order to seek employment and provide evidence that they are continuing to seek employment and have a genuine chance to find a job. According to the CJEU, Member States may limit the stay of job seekers on their territories, but the CJEU also added that EU law does not provide any specific deadline for such purposes. Somewhat vaguely the CJEU maintained that if the job seeker, after a reasonable period, continues to seek employment and has genuine chances of being engaged, he cannot be forced to leave the host Member State. 9 It remains to be added that, even after a Union citizen had to leave the country due to an unsuccessful job search, he may return, at any time, to the host state and start a new job search. 10 5 Case 53/81 Levin v. Staatssecretaris van Justitie. 6 KUNERTOVÁ, TEREZA. Volný pohyb pracovníků EU ve světle aktuální judikatury Soudního dvora EU. In: KRÁL, R. (et alii) Volný pohyb pracovníků EU v kontextu skončení přechodných opatření , Praha, 2012, 19-22. 7 Joined cases C-22/08 and C-23/08. 8 Article 7, paragraph 3 of Directive 2004/38. 9 C-138/02 Collins, par. 37. 10 Nowrot a Struckmeyer-Öner analyzed the question of whether more restrictive criteria may be applied with respect to unsuccessful job-seekers and their genuine chances of being engaged (NOWROT, K. STRUCKMAYER-ÖNER, B. „Sozialtourismus“ in Europa? Unions- und sozialrechtliche Anmerkungen zu einer aktuellen Debatte, Policy Papers on Transnational Economic Law/ University of Halle Wittenberg, 40, 2-2014, p. 7).

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