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Quick EU Question

I am working on my EU seminar and one of the questions has got me slightly confused.

'Does Article 45 TFEU catch non-discriminatory national measures? Should it?'

I read the article, which one part in particular stands out:

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.

My question now is:

Clearly, non-discriminatory measures (or indistinctly) fall within any discrimination. I am also thinking though that the answer is not that simple… and that I am missing something. If anyone can give me a bit of assistance it would be appreciated :cool:.
Original post by saiwa
I am working on my EU seminar and one of the questions has got me slightly confused.

'Does Article 45 TFEU catch non-discriminatory national measures? Should it?'

I read the article, which one part in particular stands out:

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.

My question now is:

Clearly, non-discriminatory measures (or indistinctly) fall within any discrimination. I am also thinking though that the answer is not that simple… and that I am missing something. If anyone can give me a bit of assistance it would be appreciated :cool:.



Well it does catch them but we have the same issue as we see in the goods field with 'Keck' that things which really shouldn't be caught may be found to be unlawful. An example is Graf - they gave redundancy pay of 2 months for Austrian workers. The appellant tried to argue that this is discriminatory as it discriminates against people who want to move jobs as opposed to get fired, and those who move jobs are more likely to cross a border. The court effectively imposes a de minimis requirement that some non-discriminatory measures won't be caught.

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