Free Movement of Workers Under Article 45 TFEU

The Principle of Free Movement of Workers

Article 45 TFEU guarantees the free movement of workers within the European Union. Its purpose is to allow nationals of one Member State to move to another Member State in order to work there, without suffering discrimination or unjustified restrictions.

Defining the Migrant Worker

A migrant worker is, in general, a national of a Member State who performs genuine and effective work in another Member State, under the direction of another person and in return for remuneration.

Non-Discrimination and Equal Treatment

The main right protected by Article 45 is the abolition of discrimination based on nationality. This means that migrant workers must be treated in the same way as national workers as regards access to employment, remuneration, and other working conditions.

Direct and Indirect Discrimination

The prohibition covers not only direct discrimination, where a rule expressly refers to nationality, but also indirect discrimination, where a formally neutral rule disadvantages migrant workers in practice. In addition, the Court of Justice has interpreted Article 45 broadly, so that even non-discriminatory measures may be unlawful if they make the exercise of free movement less attractive.

Specific Mobility Rights for EU Citizens

Article 45 also gives workers specific mobility rights. They have the right to:

• Accept offers of employment;
• Move freely within the territory of Member States for that purpose;
• Stay in another Member State while employed there;
• Remain there after having been employed, subject to the conditions laid down by EU law.

These rights are essential because free movement would not be effective if workers could not actually enter, reside, and integrate into the host labour market.

Direct Effect and Private Sector Application

The Court of Justice has confirmed that Article 45 TFEU has direct effect, especially in the Van Duyn case. This means that individuals can rely directly on Article 45 before national courts. Moreover, cases such as Bosman and Angonese show that Article 45 may also apply to private rules or private employers when they regulate access to employment or create obstacles to worker mobility.

Justified Restrictions and Exceptions

However, the rights under Article 45 are not absolute. Restrictions may be justified on grounds of public policy, public security, or public health, but these exceptions must be interpreted strictly and must comply with proportionality. Article 45 also excludes employment in the public service, although this exception must be interpreted narrowly.

Secondary Legislation and Temporary Postings

In conclusion, Article 45 TFEU protects migrant workers by granting them the right to move, work, stay, and be treated equally in another Member State, while prohibiting both discriminatory rules and unjustified obstacles to labour mobility.

The rights of migrant workers are supported by secondary EU laws that form a practical framework for mobility. These laws guarantee that workers and their families can move and live freely across Member States, while providing tools to enforce these rights in practice. Separate rules also protect employees who are sent abroad temporarily to perform services.