THE CONCEPT OF WORKER (IN ARTICLE 45 TFEU)

By Mpia Tsolaki, Lawyer**
Freedom of movement for workers is founded on Article 45(1) TFEU and enshrined in fact in the abolition, set out in its second paragraph, of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment[1]. That prohibition has been regarded since the beginnings of the establishment of the single European Market as an indispensable corollary to its full integration since it has crucially promoted mobility of the workforce throughout the European Union (hereinafter EU)[2]
From that point of view, it is therefore of outmost importance for ascertaining its ambit to determine at the outset the concept of "worker", which is not defined by neither the primary nor the secondary EU legislation. As expected, the Ariadne’s thread has been offered by the European Court of Justice (hereinafter ECJ) that has been constantly producing an ample case-law, which keeping pace with the social and economic changes has been impressively adapted to the inherently dynamic character of the legal sense of employee. The aim of this paper is to chart the basic lines of that jurisprudence, in the light of which in parallel it will move on to critically assess it.
* The paper at hand was submitted as coursework in the course "European Economic Law I" of the LL.M. of thw International Hellenic University, taught by Assistant Professor of Business Law at the Department of Law of the University of Cyprus and Visting Professor at the International Hellenic University, Thomas Papadopoulos, in the academic year 2014-2015. It maintains its original form.
** Mpia Tsolaki, Lawyer in Thessaloniki, LLM Civil Law, Civil Procedural Law & Labour Law, Law School of Thessaloniki,  LL.M. in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law of International Hellenic University (IHU) Dr. cand. In Labour Law in Law School of Thessaloniki. 
(photo: pixabay)

[1] The notion of combating and eliminating discriminations under certain criteria against citizens of the Member States in their workplace has been adopted within the EU as well on the logic of attaining the best possible level of competitiveness. In that respect, on the basis of other provisions of the primary EU legislation, such as article 19 TFEU (former 13 TEC) and 157 TFEU (former 141 TEC), it has been normatively specified via legislative acts of the secondary sources of the EU, the most essential of which are the Council Directive 2000/34/EC of 29th June 2000 for "implementing the principle of equal treatment irrespective of racial and ethnic origin" ( OJ L180 19.07.2000 p.22.), the Council Directive 2000/78/EC of 27th November 2000 for "establishing a general framework for equal treatment in employment and occupation" ( OJ L303 02.12.2000 p.16.), the Council Directive 2002/73/EC of 23th September 2002 amending Council Directive 76/2007/EEC "on the implementation of the principal of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions"( OJ L269 05.10.2002 p.15) and the Council Directive 97/80/EC "on the burden of proof  in cases of discrimination based on sex"(OJ L14 20.01.1998 p.6.). However, a basic distinction must be drawn between the above-mentioned legal framework based on articles 19 and 157 TFEU on one hand and that of article 45 §2 TFUE on the other hand in that the scope of application of the first-one can involve purely domestic workers whereas the latter cannot since it requires the existence of a cross-border element as a sine qua non condition according to settled case-law of the ECJ (C-175/78 Saunders [1979] ECR I-637, C-180/83 Moser [1984] ECR 2539, C-332/90 Steen [1992] ECR I-341).

[2] Horspool & Humphreys "European Union Law", p.354.


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