essay on article 45

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The federalist number 45, [26 january] 1788, the federalist number 45.

[26 January 1788]

Having shewn that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is whether the whole mass of them will be dangerous to the portion of authority left in the several states.

The adversaries to the plan of the convention instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary enquiry into the possible consequences of the proposed degree of power, to the governments of the particular states. But if the union, as has been shewn, be essential, to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different states; if it be essential to guard them against those violent and oppressive factions which imbitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word the union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government without which the objects of the union cannot be attained, that such a government may derogate from the importance of the governments of the individual states? Was then the American revolution effected, was the American confederacy formed, was the precious blood of thousands spilt, and the hard earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety; but that the governments of the individual states, that particular municipal establishments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the old world that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape, that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people is the supreme object to be pursued; and that no form of government whatever, has any other value, than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, reject the plan. Were the union itself inconsistent with the public happiness, it would be, abolish the union. In like manner as far as the sovereignty of the states cannot be reconciled to the happiness of the people; the voice of every good citizen must be, let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shewn. How far the unsacrificed residue will be endangered, is the question before us.

Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the state governments. The more I revolve the subject the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.

We have seen in all the examples of antient and modern confederacies, the strongest tendency continually betraying itself in the members to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although in most of these examples, the system has been so dissimilar from that under consideration, as greatly to weaken any inference concerning the latter from the fate of the former; yet as the states will retain under the proposed constitution a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achæan league, it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated or tended to degenerate into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissentions, and finally the disunion of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together, were much more numerous and powerful than in our case; and consequently, less powerful ligaments within, would be sufficient to bind the members to the head, and to each other.

In the feudal system we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter; it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination; and particularly had the local sovereigns possessed the affections of the people, the great kingdoms in Europe, would at this time consist of as many independent princes as there were formerly feudatory barons.

The state governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.

The state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is no wise essential to the operation or organisation of the former. Without the intervention of the state legislatures, the president of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will perhaps in most cases of themselves determine it. 1 The senate will be elected absolutely and exclusively by the state legislatures. Even the house of representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the state legislatures. Thus each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious, than too overbearing towards them. On the other side, the component parts of the state governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little if at all, to the local influence of its members.

The number of individuals employed under the constitution of the United States, will be much smaller, than the number employed under the particular states. There will consequently be less of personal influence on the side of the former, than of the latter. The members of the legislative, executive and judiciary departments of thirteen and more states; the justices of peace, officers of militia, ministerial officers of justice, with all the county corporation and town officers, for three millions and more of people, intermixed and having particular acquaintance with every class and circle of people, must exceed beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments, of the Thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the union; compare the militia officers of three millions of people, with the military and marine officers of any establishment which is within the compass of probability, or I may add, of possibility, and in this view alone, we may pronounce the advantage of the states to be decisive. If the federal government is to have collectors of revenue, the state governments will have theirs also. And as those of the former will be principally on the sea-coast, and not very numerous; whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true that the confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the states: But it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quotas by previous collections of their own; and that the eventual collection under the immediate authority of the union, will generally be made by the officers, and according to the rules, appointed by the several states. Indeed it is extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the states will be cloathed with the correspondent authority of the union. Should it happen however that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not be a comparison with that of the multitude of state-officers in the opposite scale. Within every district, to which a federal collector would be allotted, there would not be less than thirty or forty or even more officers of different descriptions and many of them persons of character and weight, whose influence would lie on the side of the state.

The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.

The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the state governments will here enjoy another advantage over the federal government. The more adequate indeed the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favour their ascendancy over the governments of the particular states.

If the new constitution be examined with accuracy and candour, it will be found that the change which it proposes, consists much less in the addition of new powers to the union, than in the invigoration of its original powers . The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing congress by the articles of confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation, may be regarded as the most important: and yet the present congress have as compleat authority to require of the states indefinite supplies of money for the common defence and general welfare, as the future congress will have to require them of individual citizens; and the latter will be no more bound than the states themselves have been, to pay the quotas respectively taxed on them. Had the states complied punctually with the articles of confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion that the state governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the state governments is incompatible with any system whatever that accomplishes the essential purposes of the union.

McLean description begins The Federalist, A Collection of Essays, written in favour of the New Constitution, By a Citizen of New-York. Printed by J. and A. McLean (New York, 1788). description ends , II, 77–83.

1 .  The Constitution stipulates that each state legislature shall direct the manner by which the presidential electors are appointed, and as JM hinted, six of the eligible eleven legislatures chose some or all of their states’ electors in Washington’s first election (U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1957 [Washington, 1960], p. 681).

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Provision for early childhood care and education to children below the age of six years

The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

Article 36, Draft Constitution of India 1948

Every citizen is entitled to free primary education and the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

Article 45, Constitution of India 1950

The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

Draft Article 36 (Article 45) was taken up for debate on 23 November 1948 in the Constituent Assembly. It provided for free and compulsory education for children under the age of fourteen.

An Assembly member wanted to bring the phrasing of Draft Article 36 in line with other Directive Principles of State Policy. While most provisions began with a ‘ State shall strive to… ’ type phrasing, Draft Article 36 began with ‘ Every citizen is entitled to… ’ – which read more like a legally enforceable fundamental right rather than a Directive Principle.

There was a proposal to replace ‘ education ’ with ‘ primary education ’, arguing that the State should confine the scope of its duties to only primary education.

One member expressed skepticism about Draft Article 36 and referred to it (along with other provisions of the Directive Principles) as ‘ pious hopes and pious wishes ’. This type of criticism often came up when other Articles of the Directive Principles were debated.

It was agreed that the language of the Draft Article should be brought in line with other Directive Principles. It was also clarified that ‘ education ’ was intentionally used as it was linked to Draft Article 18 that barred children below 14 from being employed. The object behind this Draft Article was to keep children below 14 occupied in some educational institution – for primary or any other type of education.

The Draft Article was adopted with the single amendment.

In 2002, the Directive Principle was converted into a fundamental right through the Constitution (Eighty-sixth Amendment) Act, 2002 , which also amended the Article to its current form.

Article 45 In English | Article 45 Of Indian Constitution In English | What is Article 45

In this Post, You know about  Article 45 Of Indian Constitution In English . If you do not know about what is Article 45 , then this post you will give you complete information about that Indian Constitution Article.

Articles are given in our Indian Constitution, in which one mark has been given to each provision where article 45 has also been told in the india constitution. Every person of India must have know about the Indian Constitution Articles.

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Article 45 Of Indian Constitution In English

Article 45 – Provision for free and compulsory education for children. The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

Article 45 In English

45 Article – Provision of free and compulsory education for children. The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, free and compulsory education to all children until they complete the age of fourteen years.

Note- All the things mentioned in this have been taken from the Indian Constitution itself. That is, it is the word of the constitution.

What Is Article 45 Of Indian Constitution?

In Article 45 you see “ Provision for free and compulsory education for children ” that means The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

Article 45 Debate Summary

The draft Article 36 was taken up for debate in the Constituent Assembly on 23 November 1948. It provided free and compulsory education for children below the age of fourteen. An assembly member wanted to bring the clause in the draft Article 36 in line with the other Directive Principles of State Policy (DPSP). While most of the provisions began with the type phrase ‘State shall endeavor to…’, the draft Article 36 began with ‘Every citizen is entitled to…’ – which seeks a legally enforceable fundamental right, rather than a DPSP. Kind of reads more.

There was a proposal to replace ‘education’ with ‘elementary education’, which argued that the state should limit the scope of its duties to primary education only. One member expressed doubts about the draft Article 36 and referred to it (along with other provisions of the DPSP) as ‘sacred hope and holy will’. This type of criticism often occurred when other articles of the DPSP were debated. It was agreed that the language of the draft Article should be brought in line with the other Directive Principles.

On the question of ‘primary education’ versus ‘education’, it was clarified that the use of ‘education’ was deliberate as it was linked to Article 18 which prohibited the employment of children below 14 years of age; The object behind Article 34 of the draft was to keep children below 14 years of age in an educational institution for primary or any other form of education. The draft article was adopted with amendments.

[In 2002, the draft article adopted by the Constituent Assembly was replaced by the 86th Amendment: Provision of early childhood care and education for children below the age of six years. 45- The State shall endeavor to provide early childhood care and education for all children till they complete the age of six years.”.]

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The Federalist , commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time.

The Federalist Papers were written and published to urge New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. In lobbying for adoption of the Constitution over the existing Articles of Confederation, the essays explain particular provisions of the Constitution in detail. For this reason, and because Hamilton and Madison were each members of the Constitutional Convention, the Federalist Papers are often used today to help interpret the intentions of those drafting the Constitution.

The Federalist Papers were published primarily in two New York state newspapers: The New York Packet and The Independent Journal . They were reprinted in other newspapers in New York state and in several cities in other states. A bound edition, with revisions and corrections by Hamilton, was published in 1788 by printers J. and A. McLean. An edition published by printer Jacob Gideon in 1818, with revisions and corrections by Madison, was the first to identify each essay by its author's name. Because of its publishing history, the assignment of authorship, numbering, and exact wording may vary with different editions of The Federalist .

The electronic text of The Federalist used here was compiled for Project Gutenberg by scholars who drew on many available versions of the papers.

One printed edition of the text is The Federalist , edited by Jacob E. Cooke (Middletown, Conn., Wesleyan University Press, 1961). Cooke's introduction provides background information on the printing history of The Federalist; the information provided above comes in part from his work.

This web-friendly presentation of the original text of the Federalist Papers (also known as The Federalist) was obtained from the e-text archives of Project Gutenberg. Any irregularities with regard to grammar, syntax, spelling, or punctuation are as they exist in the original e-text archives.

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Article 45 Of The Indian Constitution

Article 45 of the Indian constitution was indeed a pivotal step to shape the lives of Indian citizens and to bring in their life the decent standard of living we see today. The improvements has been remarkable and we are still progressing in terms of living and not just existing. Let us dig into the article to know more about it.

What Does Article 45 of the Indian Constitution Say?

• Article 45: A Clarion Call For Children's Education

Contribution Of Article 45 To The 86th Amendment Of The Indian Constitution

Q. what is article 45 of indian constitution all about, q. how is article 45 different from article 21a.

• For the betterment of society, people, and their standard of living, the Directive Principles of State Policy (DPSP) have been put in place.
• These principles aim to create favorable social and economic conditions for the citizens to have a decent standard of life.
• In a nutshell, paving way for the social and democratic welfare of the state is the ultimate aim of the Directive Principles.
• Article 45 revolves around the necessity to impart free-of-charge education. It also talks about making quality education compulsory for children.
• Let us delve deeper into the details of Article 45 and gain a complete understanding of it.

Related – Provision for free and compulsory education for children

• Article 45 of the Indian constitution is a part of the Directive Principles of State Policy (DPSP). It is included in Part IV of the Indian Constitution.
• The Constitution provides that the State will take upon itself the onus to provide free as well as compulsory education for all children. This would continue till they attain fourteen years of age. This shall be done within ten years from the inception of the Constitution.
• For the enactment of the 86th Amendment of the Indian Constitution, 2022, Article 45 has been revised. This was done to restrict its scope for providing primary education up to the age of six years.
• In addition to that, the State shall make every effort to provide all children with early childhood care.

Article 45: A Clarion Call For Children’s Education

• The nation’s system of free and compulsory education was established by Article 45 of Directive Principles of State Policy (DPSP).
• The right to impart education to children is recognized under Article 45, which also directs the state to make elementary education both required and accessible to all children.
• Additionally, it promotes the growth of a variety of secondary school options, such as general and vocational education. It aims to make them accessible to all citizens.
• Article 45 takes the necessary actions, such as enforcing a free education policy and offering financial aid for childhood care when necessary.

See Also – 86th Amendment Of Indian Constitution

• The 86th Amendment, 2002 of the Indian Constitution was enacted in the fifty-third year of the Republic of India by the Parliament.
• It mainly provides for two things. Firstly, it concerns the Right to Education for children between the ages of six and fourteen. Secondly, it addresses the provision for early childcare for up to six years of age.
• The said constitutional amendment involved the introduction of Article 21A, the substitution of a new article for Article 45, and the amendment of Article 51A to the Indian Constitution.
• The previous Article 45 revolved around providing free and compulsory education. It stated, “The State shall provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”
• A new article was substituted for Article 45 of the Constitution. The new article talked about providing all children below the age of six years with early childhood care and education. It read, “45. The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years.”
• One of the Directive Principles of State Policy (DPSP) is the establishment of social and economic equality throughout the nation.
• Article 45 addresses the issue of opportunities for education for children. It stresses the need for free and obligatory education for them.
• It is stated in the Constitution that the State should make an effort to provide all children with free and required education until they are fourteen years old. This provision would be made during the first ten years following the beginning of this Constitution.
• The substitution of a new article for Article 45 advocates for the provision of early childhood care and education for children below the age of six.

Article 45 is concerned with providing free as well as compulsory education for children below six years of age.

Article 45 is a Directive Principle of State Policy (DPSP). On the other hand, Article 21A is a Fundamental Right. Both of these fall under Part IV and Part III of the Indian Constitution, respectively. The 86th Amendment, of 2002 was instrumental in adding both these articles to the Constitution of India.

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The Federalist Papers No. 45

In this essay, James Madison argues that the expanded powers of the central government under the proposed U.S. Constitution would not endanger the state governments. Writing under the name of “Publius,” Madison, along with John Jay and Alexander Hamilton, published 85 FEDERALIST essays in order to support the ratification of the Constitution.

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Article 45 of Indian Constitution

Article 45 of Indian Constitution: Provision for free and compulsory education for children

Article 45 Provision for free and compulsory education for children – Constitution Of India

The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

Summary of Article 28 of Indian Constitution

Explanation using Example

Think of a tiny village in India without any schools for young kids. According to Article 45 of the Indian Constitution, the local government should start a little school or a playgroup run by the community. This way, all the kids under six years old in the village can learn and play, making sure the government keeps its promise to Article 45.

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Right to Education

• 06 Sep 2019
• GS Paper - 2
• Fundamental Rights

Why in the news?

India’s landmark Right to Education (RTE) Act, 2009 completes its decadal anniversary. Further, renewed focus on skilling and higher education, the RTE remains one of the most important catalysts for India to reap its much-anticipated “ demographic dividend. ”

What is Right to Education?

Right to Education Act (RTE) provided free and compulsory education to children in 2009 and enforced it as a fundamental right under Article 21-A.

Why Right to Education?

The Right to Education serves as a building block to ensure that every child has his or her right to get a quality elementary education.

Constitutional Background

• Originally Part IV of Indian Constitution, Article 45 and Article 39 (f) of DPSP, had a provision for state funded as well as equitable and accessible education.
• The first official document on the Right to Education was Ramamurti Committee Report in 1990.
• In 1993, the Supreme Court’s landmark judgment in the Unnikrishnan JP vs State of Andhra Pradesh & Others held that Education is a Fundamental right flowing from Article 21.
• Tapas Majumdar Committee (1999) was set up, which encompassed insertion of Article 21A.
• The 86 th amendment to the constitution of India in 2002, provided Right to Education as a fundamental right in part-III of the Constitution.
• The same amendment inserted Article 21A which made Right to Education a fundamental right for children between 6-14 years.
• The 86th amendment provided for a follow-up legislation for Right to Education Bill 2008 and finally Right to Education Act 2009.

Feature of Right to Education (RTE) Act, 2009

• The RTE Act aims to provide primary education to all children aged 6 to 14 years.
• It enforces Education as a Fundamental Right (Article 21).
• SCs and STs
• Socially Backward Class
• Differently abled
• It also makes provisions for a non-admitted child to be admitted to an age appropriate class.
• It also states that sharing of financial and other responsibilities between the Central and State Governments.
• Pupil Teacher Ratios (PTRs)
• Buildings and infrastructure
• School-working days
• Teacher-working hours.
• It had a clause for “No Detention Policy” which has been removed under The Right of Children to Free and Compulsory Education (Amendment) Act, 2019.
• It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and parliament, and disaster relief.
• It provides for the appointment of teachers with the requisite entry and academic qualifications.
• Physical punishment and mental harassment
• Screening procedures for admission of children
• Capitation fee
• Private tuition by teachers
• Running of schools without recognition
• It focuses on making the child free of fear, trauma and anxiety through a system of child friendly and child centred learning.

Achievements of Right to Education Act,2009

• The RTE Act has successfully managed to increase enrolment in the upper primary level (Class 6-8).
• Stricter infrastructure norms resulted in improved school infrastructure, especially in rural areas.
• More than 3.3 million students secured admission under 25% quota norm under RTE.
• It made education inclusive and accessible nationwide.
• Removal of “no detention policy” has brought accountability in the elementary education system.
• Sarva Shiksha Abhiyan (SSA)
• Rashtriya Madhyamik Shiksha Abhiyan (RMSA)
• Centrally Sponsored Scheme on Teacher Education (CSSTE).

Limitation of Right to Education Act, 2009

• Age group for which Right to Education is available ranges from 6 – 14 years of age only, which can be made more inclusive and encompassing by expanding it to 0 – 18 years.
• There is no focus on quality of learning, as shown by multiple ASER reports, thus RTE Act appears to be mostly input oriented.
• Five States namely Goa, Manipur, Mizoram, Sikkim and Telangana have not even issued notification regarding 25% seats for underprivileged children of society under the RTE.
• More focus is being given over statistics of RTE rather than quality of learning.
• Lack of teachers affect pupil-teacher ratio mandated by RTE which in turn affects the quality of teaching .

Steps to Be Taken

• Minority Religious Schools need to be brought under the RTE.
• More focus on teacher training programs.
• Quality of education needs to be emphasized over quantity of education.
• Steps should be taken to make the teaching profession attractive.
• Society as a whole needs to be supportive of education for children without biases.

Way Forward

It has been ten years since the implementation of RTE Act, but it can be seen that it still has a long way to go to be called successful in its purpose. Creation of a conducive atmosphere and supply of resources would pave the way for a better future for individuals as well as the nation as a whole.

No detention Policy

The no-detention policy was introduced as a part of the Continuous and Comprehensive Evaluation (CCE) under the Right to Education Act (RTE) in 2010.

• Under this policy, students up to Class 8 are automatically promoted to the next class without being held back even if they do not get a passing grade.
• The policy was to ensure that no child admitted in a school shall be held back in any class or expelled from school until the completion of elementary education.

But, recently it has been removed by RTE Amendment Act, 2019.

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• What Does Article 45 Say

What does Article 45 say?

Article 45 talks about the provision for free and compulsory education for children. It states that “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”. This is one of the Directive Principles of State Policy to promote social and economic equality in the country.

Further Reading:

• List of Important Articles in Indian Constitution
• Directive Principles of State Policy

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Article 45 [Free Movement of Workers]

(ex-Article 39 TEC)

• First Online: 01 June 2021
• pp 959–1011

Cite this chapter

• Alina Tryfonidou 3  

Part of the book series: Springer Commentaries on International and European Law ((SCIEL))

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The freedom of movement for workers is one of the fundamental freedoms of the EU. It has been in the Treaties since the very inception of the Communities and has been developed through the years through secondary legislation (which supplements the Treaty provisions) as well as ECJ case-law. This chapter aims to analyse the core provision governing the free movement of workers (Article 45 TFEU), the secondary legislation supplementing it, as well as the relevant case-law. We shall examine the personal, material, and territorial scope of this freedom, as well as the justifications which are available to Member States (and persons) when they seek to derogate from this freedom.

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Migrant Workers’ Rights in Focus: Placing the UN Convention on Migrant Workers in the European Human Rights’ Framework

Impact of the Article 50 of TEU on Migration of the EU Workers in Case of Brexit

The ECSC Treaty expired in 2002 after applying for fifty years under Article 97 thereof.

The Schuman Declaration, full text available at http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/index_en.htm .

Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community , O.J. L 257/2 (1968).

Handoll ( 1995 ), p. 27.

However, it should be noted that the provisions remained formally in force as Article 232.1 TEEC, which provided that the EEC Treaty provisions were not to affect the provisions of the ECSC Treaty, in particular concerning the rights and obligations of MS, the powers of the institutions of the Community and the rules laid down in the ECSC Treaty for the functioning of the common market in coal and steel; and Article 232.2 TEEC provided that the provisions of the EEC Treaty were not to detract from those of the Euratom Treaty.

The date of the expiry of the transitional period was 1 January 1970.

However, it should be noted that in each enlargement, there is, usually, a transitional period for the freedom of movement of workers, for some or all of the acceding States. For more on this, see White ( 2004 ), pp. 18–19; Mitsilegas ( 2009 ). At the moment, there are transitional provisions only for workers from Croatia, since Croatia is the most recent MS to join in 2013. In the current (final) phase of the transitional arrangements for Croatia (from July 2018 until the end of June 2020), MS are only able to impose restrictions on the free movement of Croatian nationals in case of serious disturbances on their labour market or a threat of such disturbances.

For a relatively recent article assessing the development of the law governing the free movement of workers, see White ( 2011 ). For some comments on the difficulties and dilemmas that the free movement of persons (including the free movement of workers) involves in the current economic and political climate, see Editorial Comments ( 2014 ). For an older article dealing with similar issues, see O’Leary ( 1999 ).

Craig and de Búrca ( 2015 ), p. 745.

For some comments on this, see O’Leary ( 2011 ), pp. 505–508.

Commission Communication, Free movement of EU citizens and their families: Five actions to make a difference , COM(2013) 837 final, p. 2.

This was first acknowledged by the Court in Case 167/73, Commission v France (ECJ 4 April 1974) para 41.

Case 36/74, Walrave and Koch (ECJ 12 December 1974) para 17–19; Case C-415/93, Bosman (ECJ 15 December 1995) para 82–84; Case C-411/98, Ferlini (ECJ 3 October 2000) para 50; Case C-438/05, Viking (ECJ 11 December 2007); Case C-94/07, Raccanelli (ECJ 17 July 2008); Case C-325/08, Olympique Lyonnais (ECJ 16 March 2010); Case C-379/09, Maurits Casteels (ECJ 10 March 2011).

Barnard ( 2016 ), p. 233.

Case C-281/98, Angonese (ECJ 6 June 2000). This was also confirmed in Case C-94/07, Raccanelli (ECJ 17 July 2008).

See, for instance, Case C-415/93, Bosman (ECJ 15 December 1995); Case C-281/98, Angonese (ECJ 6 June 2000).

Case C-350/96, Clean Car (ECJ 7 May 1998) para 20.

Case C-208/05, ITC (ECJ 11 January 2007).

For details on early pieces of secondary legislation, which are no longer in force, see Condinanzi et al. ( 2008 ), pp. 66–67.

Case 118/75, Watson and Belmann (ECJ 7 July 1976).

Barnard ( 2016 ), p. 244.

Charter of Fundamental Rights of the European Union, O.J. C 83/389 (2010).

For an analysis of this argument, see Tryfonidou ( 2016 ).

Parliament/Council Regulation (EU) No 492/2011 on freedom of movement for workers within the Union , O.J. L 41/1 (2011).

Articles 10 and 11 on family reunification rights.

Article 38 of Parliament/Council Directive (EC) No 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States , O.J. L 158/77 (2004).

Craig and de Búrca ( 2015 ), p. 778.

Parliament/Council Directive (EU) No 2014/50 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights , O.J. L 128/1 (2014).

Parliament/Council Directive (EU) No 2014/54 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers , O.J. L 128/8 (2014).

Craig and de Búrca ( 2015 ), p. 744.

Parliament/Council Directive (EC) No 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States , O.J. L 158/77 (2004).

Article 3.1 of Parliament/Council Directive (EC) No 2004/38.

Case C-456/12, O & B (ECJ 12 March 2014) para 33–43 and 50.

Articles 7 and 14 of Parliament/Council Directive (EC) No 2004/38.

Article 24.1 of Directive 2004/38 provides: “Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.”

Article 24.2 of Directive 2004/38 provides: “By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.”

Council Directive (EEC) No 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families , O.J. L 257/13 (1968).

The same formalities are now applicable to all migrant Union citizens and their family members and are now found in Article 2 and 3 of Directive 2004/38. It should be noted that the rights to move, reside and, work in the host State are not conditional upon initial satisfaction of the formalities laid down in secondary legislation or formalities laid down by the host State (see, inter alia, Case 48/75, Royer (ECJ 8 April 1976)). However, failure to satisfy such formalities can attract (proportionate) penalties provided they are comparable to those for equivalent offences committed by nationals—see Case 157/79, Pieck (ECJ 3 July 1980). Failure to satisfy formalities can under no circumstances be relied on as the basis for expulsion of a national of another MS from the territory of the host State as a deportation, which is based on failure to satisfy formalities is “so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons”—see Case 118/75, Watson and Belmann (ECJ 7 July 1976) para 21; and, more recently, Case C-215/03, Oulane (ECJ 17 February 2005) para 38 and 40.

Parliament/Council Directive (EC) No 2005/36 on the recognition of professional qualifications , O.J. L 255/22 (2005).

Parliament/Council Directive (EU) No 2013/55 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) , O.J. L 354/132 (2013).

Parliament/Council Directive (EU) No 2011/24 on the application of patients’ rights in cross-border healthcare , O.J. L 88/45 (2011).

Parliament/Council Regulation (EC) No 883/2004 on the coordination of social security systems , O.J. L 166/1 (2004); Parliament/Council Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems , O.J. L 284/1 (2009).

Commission Decision (EC) No. 2003/8 implementing Council Regulation (EEC) No 1612/68 as regards the clearance of vacancies and applications for employment , O.J. L 005/16 (2002).

Case 75/63, Hoekstra (ECJ 19 March 1964).

Case 75/63, Hoekstra (ECJ 19 March 1964), p. 184.

Case 53/81, Levin (ECJ 23 March 1982) para 13.

Johnson and O’Keeffe ( 1994 ).

Case C-357/89, Raulin (ECJ 26 February 1992). O’Leary has pointed out that this “implies that differences will inevitably emerge between Member States or within a single Member State. A worker qualified by one national judge as coming within the scope of Article 45 TFEU might not prove so fortunate before the courts of a different Member State or even before a different national judge. This is the inevitable consequence of leaving the factual appreciation of the individual’s situation to the national judge and of the absence of a minimum threshold as regards the number of hours which must be worked or the minimum pay necessary to guarantee qualification as a worker”—O’Leary ( 2011 ), pp. 527–528.

Case 53/81, Levin (ECJ 23 March 1982) para 17.

Case C-413/01, Ninni-Orasche (ECJ 6 November 2003) para 29.

Case 66/85, Lawrie-Blum (ECJ 3 July 1986).

Case 66/85, Lawrie-Blum (ECJ 3 July 1986) para 17.

White ( 2004 ), p. 33.

Chalmers et al. ( 2014 ), p. 854. See, also, O’Brien ( 2009 ).

Case 238/83, Meade (ECJ 5 July 1984) para 7.

See, inter alia, Hoogenboom ( 1992 ), Iglesias Sánchez ( 2009 ), Wiesbrock ( 2012 ) and Kochenov and van den Brink ( 2015 ).

For more on this see Barnard ( 2016 ), p. 208.

Declaration on Nationality of a Member State , O.J. C 191/98 (1992).

See, inter alia, Case C-369/90, Micheletti (ECJ 7 July 1992) para 10 ; Case C-192/99, R v Secretary of State for the Home Department, ex parte Kaur (ECJ 20 February 2001) para 19; Case C-135/08, Rottmann (ECJ 2 March 2010) para 39.

For a more detailed analysis of this see Tryfonidou ( 2016 ).

See, most prominently, Case C-138/02, Collins (ECJ 23 March 2004) para 63; Joined Cases C-482 and 493/01, Orfanopoulos and Oliveri (ECJ 29 April 2004) para 65.

Case C-413/01, Ninni-Orasche (ECJ 6 November 2003) para 30.

Case C-507/12, Jesse Saint Prix (ECJ 19 June 2014) para 39–42.

Case C-337/97, Meeusen (ECJ 8 June 1999) para 12–17.

Joined Cases C-389 and 390/87, Echternach and Moritz (ECJ 15 March 1989) para 11; Case C-233/12, Gardella (ECJ 4 July 2013) para 26.

Case 196/87, Steymann (ECJ 5 October 1988).

Case 3/87, R v. Ministry of Agriculture, Fisheries and Food, ex p Agegate Ltd (ECJ 14 December 1989).

Case 53/81, Levin (ECJ 23 March 1982).

Case 139/85, Kempf (ECJ 3 June 1986).

Case 344/87, Bettray (ECJ 31 May 1989).

Case 344/87, Bettray (ECJ 31 May 1989) para 17. Contrast this case with Case C-1/97, Birden (ECJ 26 November 1998).

Case 197/86, Brown (ECJ 21 June 1988). Hence, like job seekers (their position will be explained below in the main text), workers who merely undertake work for a temporary period only as a means to qualify for an educational course, hold a quasi-worker status, which precludes them from being entitled to the full gamut of advantages open to fully-fledged workers.

Craig and de Búrca ( 2015 ), p. 753,

Case C-456/02, Trojani (ECJ 7 September 2004) para 19.

See Goudappel ( 2010 ), p. 55.

See, for instance, Case C-232/01, Van Lent (ECJ 2 October 2003); Case C-109/04, Kranemann (ECJ 17 March 2005). For an analysis of the ‘right to exit’ derived from the EU free movement provisions see Lazowski ( 2015 ).

See, for instance, Case 41/74, Van Duyn (ECJ 4 December 1974).

In Case 48/75, Royer (ECJ 8 April 1976) para 31, the Court referred to the right “to look for” an occupation.

Case C-292/89, Antonissen (ECJ 26 February 1991). This is now consolidated in secondary legislation: see Article 14.4 (b) of Directive 2004/38.

Case 316/85, Lebon (ECJ 18 June 1987).

Case C-138/02, Collins (ECJ 23 March 2004); Case C-258/04, Ioannidis (ECJ 15 September 2005); Joined Cases C-22 and 23/08, Vatsouras and Koupatantze (ECJ 4 June 2009).

Fahey ( 2009 ).

Joined Cases C-22 and 23/08, Vatsouras and Koupatantze (ECJ 4 June 2009) para 45. For comments, see O’Leary ( 2011 ), pp. 516–517.

Case C-67/14, Alimanovic (ECJ 15 September 2015).

Case C-67/14, Alimanovic (ECJ 15 September 2015) para 59–60.

Case 175/78, Saunders (ECJ 28 March 1979).

Case C-138/02, Collins (ECJ 23 March 2004)

Case C-419/92, Scholz (ECJ 23 February 1994). See, also, Case C-370/90, Singh (ECJ 7 July 1992).

Case C-112/91, Werner (ECJ 26 January 1993).

Case C-363/89, Roux (ECJ 5 February 1991) para 9.

Case C-385/00, De Groot (ECJ 12 December 2002); Case C-209/01, Schilling and Fleck-Schilling (ECJ 13 November 2003); Case C-227/03, Van Pommeren-Bourgondiën (ECJ 7 July 2005).

For a detailed analysis of the position of frontier workers under EU law, see Golynker ( 2006 ).

The term has been borrowed from O’Brien ( 2008 ).

On the facts, the freedom of establishment was relied on but it is equally clear that the same reasoning would be followed in a case involving employed persons.

Case C-385/00, De Groot (ECJ 12 December 2002) para 76; Case C-209/01, Schilling and Fleck-Schilling (ECJ 13 November 2003) para 23; and Case C-227/03, Van Pommeren-Bourgondiën (ECJ 7 July 2005) para 19, 44 and 45.

Case C-152/03, Ritter-Coulais (ECJ 21 February 2006) para 31. This was confirmed in, inter alia, Case C-470/04, N (ECJ 7 September 2006); Case C-464/05, Geurts (ECJ 25 October 2007); Case C-527/06, Renneberg (ECJ 16 October 2008); Case C-379/11, Caves Krier (ECJ 13 December 2012). For an analysis of this case law see Tryfonidou ( 2009c ).

Case C-520/04 Turpeinen (ECJ 9 November 2006) para 16; Case C-544/07, Rüffler (ECJ 23 April 2009) para 52.

Case C-292/89, Antonissen (ECJ 26 February 1991) para 13.

Tryfonidou ( 2016 ), pp. 109–112.

White ( 2004 ), p. 194. See, also, Tryfonidou ( 2014 ).

For an analysis of the other main provisions of Regulation 492/2011 (and the Court’s case law interpreting them) see Barnard ( 2016 ), pp. 265–268.

Initially, in Case 76/72, Michel S (ECJ 11 April 1972), the Court had ruled that Article 7.2 concerned only benefits connected with employment.

Case 32/75, Cristini (ECJ 30 September 1975); Case 63/76, Inzirillo (ECJ 16 December 1976); Case 94/84, Deak (ECJ 20 June 1985); Case 152/82, Forcheri (ECJ 13 July 1983); Case 261/83, Castelli (ECJ 12 July 1984); Case 157/84, Frascogna (ECJ 6 June 1985). This is now also enshrined in secondary legislation: Article 24.1 of Directive 2004/38 provides that the benefit of the right to equal treatment “shall be extended to family members who are non-nationals of a Member State and who have the right of residence or permanent residence”.

Ellis ( 2003 ), p. 648.

Case 32/75, Cristini (ECJ 30 September 1975).

Case 65/81, Reina (ECJ 14 January 1982).

Case C-59/85, Reed (ECJ 17 April 1986). Unmarried partners in a stable relationship now fall within the scope of Article 3.2 (b) of Directive 2004/38 and, thus, the host State must facilitate their admission to its territory; whilst registered partners fall within the Article 2.2 group of family members who are automatically entitled to join the migrant in the host State, provided that the host State treats registered partnerships as equivalent to marriage.

Case 137/84, Mutsch (ECJ 11 July 1985).

Case 207/78, Even (ECJ 31 May 1979) para 22. For an authoritative article on the interpretation of this provision see O’Keeffe ( 1985 ).

See, inter alia, Case C-246/89, Commission v UK (ECJ 4 October 1991).

Barnard ( 2016 ), pp. 399–400.

Case C-279/93, Schumacker (ECJ 14 February 1995); Case C-376/03, D (ECJ 5 July 2005); Case C-336/96, Gilly (ECJ 12 May 1998).

This was, in fact, the case in Case C-279/93, Schumacker (ECJ 14 February 1995).

For a clear explanation of the Court’s approach towards taxation in the context of the free movement of persons provisions see Barnard ( 2016 ), pp. 256–260 and 399–409.

For a detailed consideration of the distinction between direct and indirect discrimination on the ground of nationality see Case C-73/08, Bressol (Opinion of AG Sharpston of 25 June 2009) para 43–57.

Case 167/73, Commission v France (ECJ 4 April 1974). For other examples of direct discrimination on the ground of nationality see, inter alia, Case C-179/90, Merci Convenzionali Porto di Genova (ECJ 10 December 1991); the “3+2 rule” in Case C-415/93, Bosman (ECJ 15 December 1995); Case C-283/99, Commission v Italy (ECJ 31 May 2001).

Case C-237/94, O’Flynn (ECJ 23 May 1996) para 18. It should be noted that the fact that a measure may also affect nationals of the said MS does not prevent it from being considered indirectly discriminatory, the obvious example of this being Case C-19/92, Kraus (ECJ 31 March 1993).

Case C-350/96, Clean Car (ECJ 7 May 1998); Case C-138/02, Collins (ECJ 23 March 2004); Case C-238/15, Verruga (ECJ 14 December 2016).

Case 379/87, Groener (ECJ 28 November 1989); Case C-317/14, Commission v Belgium (ECJ 5 February 2015).

Case C-15/96, Schöning-Kougebetopoulou (ECJ 15 January 1998).

See, for instance, Case C-171/02, Commission v Portugal (ECJ 29 April 2004).

Case C-237/94, O’Flynn (ECJ 23 May 1996) para 20.

See, for instance, Case C-279/93, Schumacker (ECJ 14 February 1995); Case C-391/97, Gschwind (ECJ 14 September 1999).

A case where the Court expressly admitted the prohibition of such discrimination was the citizenship Case C-224/98, D’Hoop (ECJ 11 July 2002). For a free movement of workers case, which involved such discrimination, see Case C-19/92, Kraus (ECJ 31 March 1993).

See, for instance, the Court’s approach in Case C-281/98, Angonese (ECJ 6 June 2000).

Joined Cases C-158 and 159/04, Vassilopoulos (Opinion of AG Poiares Maduro of 30 March 2006) para 44.

See Recital 5 of Directive 2004/38 and a long list of provisions in that Directive (e.g. Article 12.3, Article 17.3; Article 23; Article 28.2), which accompany the words “family member” with the words “irrespective of nationality”.

Article 2.2 of Directive 2004/38.

Case C-59/85, Reed (ECJ 17 April 1986).

Case C-673/16, Coman (ECJ 5 June 2018). For an analysis of the position of same-sex couples and their ability to move freely between Member States under EU law see Tryfonidou ( 2015 ).

Case 267/83, Diatta (ECJ 13 February 1985) para 20.

Case 267/83, Diatta (ECJ 13 February 1985) para 18. However, there is a requirement that the family member and the Union citizen must reside in the same MS, i.e. the MS to which the Union citizen has moved—Case C-40/11 Iida (ECJ 8 November 2012) para 61–64.

Case C-413/99, Baumbast and R (ECJ 17 September 2002) para 58–63 and 68–75. Confirmed in Case C-480/08, Teixeira (ECJ 23 February 2010).

Case 316/85, Lebon (ECJ 18 June 1987) para 22.

Case C-200/02, Zhu and Chen (ECJ 19 October 2004) para 43–44.

Case C-1/05, Jia (ECJ 9 January 2007) para 37.

Case C-423/12, Reyes (ECJ 16 January 2014).

Case C-109/01, Akrich (ECJ 23 September 2003).

Case C-127/08, Metock (ECJ 25 July 2008) para 48–68. For a discussion of the case see, inter alia, Tryfonidou ( 2009d ) and Currie ( 2009 ).

Case C-370/90, Singh (ECJ 7 July 1992); Case C-291/05, Eind (ECJ 11 December 2007); Case C-456/12 O & B (ECJ 12 March 2014).

Case C-60/00, Carpenter (ECJ 11 July 2002).

Case C-60/00, Carpenter (ECJ 11 July 2002) para 39. Carpenter has been one of the most criticised cases of all times—see, inter alia, Acierno ( 2003 ), Toner ( 2003 ), Tryfonidou ( 2003 ) and Editorial Comments ( 2003 ).

Case C-457/12, S & G (ECJ 12 March 2014) para 40.

Case C-457/12, S & G (ECJ 12 March 2014) para 42.

See, for instance, Case 32/75, Cristini (ECJ 30 September 1975); Case 63/76, Inzirillo (ECJ 16 December 1976); Case 94/84, Deak (ECJ 20 June 1985); Case 152/82, Forcheri (ECJ 13 July 1983); Case 261/83, Castelli (ECJ 12 July 1984).

This is, further, supplemented by Council Directive 77/486 (EEC) on the education of the children of migrant workers , O.J. L 199.32 (1977), which lays down a requirement for the provision by the host State of tuition that includes teaching of the language of the host State, as well as to promote the teaching of the mother tongue and the culture of the MS of origin with a view to facilitating the possible reintegration of the worker’s children into the MS of origin.

Case C-7/94, Gaal (ECJ 4 May 1995).

Case 76/72, Michel S (ECJ 11 April 1972).

Case 9/74, Casagrande (ECJ 3 July 1974).

Case C-308/89, Di Leo (ECJ 13 November 1990).

Joined Cases 389 and 390/87, Echternach and Moritz (ECJ 15 March 1989).

Case C-33/99, Fahmi (ECJ 20 March 2001).

Case C-413/99, Baumbast and R (ECJ 17 September 2002).

Case C-480/08, Teixeira (ECJ 23 February 2010); Case C-310/08, Ibrahim (ECJ 23 February 2010).

For an analysis of this distinction, see Tryfonidou ( 2016 ), pp. 22, 180–182, 186.

Case C-415/93, Bosman (ECJ 15 December 1995). For subsequent cases that confirmed this, see inter alia, Case C-232/01, Van Lent (ECJ 2 October 2003); Case C-40/05, Lyyski (ECJ 11 January 2007); Case C-325/08, Olympique Lyonnais (ECJ 16 March 2010).

Case C-415/93, Bosman (ECJ 15 December 1995) para 103.

Case 175/78, Saunders (ECJ 28 March 1979). However, the rule was first established a few months earlier in the establishment Case 115/78, Knoors (ECJ 7 February 1979).

See, for instance, Case 180/83, Moser (ECJ 28 June 1984); Case 298/84, Iorio (ECJ 23 January 1986); Joined Cases C-297/88 and 197/89, Dzodzi (ECJ 18 October 1990); Case C-332/90, Steen (ECJ 28 January 1992); Case C-60/91, Morais (ECJ 19 March 1992); Case C-379/92, Peralta (ECJ 14 July 1994).

See, for instance, Case 20/87, Gauchard (ECJ 8 December 1987); Joined Cases C-54 and 91/88 and C-14/89, Criminal proceedings against Niño (ECJ 3 October 1990).

Case 180/83, Moser (ECJ 28 June 1984); Case C-299/95, Kremzow (ECJ 29 May 1997). For a discussion of the difference between purely hypothetical obstacles to the exercise of free movement, on the one hand, and potential obstacles, on the other, see Tryfonidou ( 2013 ), pp. 302, 307–313.

For a detailed analysis of reverse discrimination see Tryfonidou ( 2009a ).

Although purely internal situations may be subjected to stricter national regulation (or they may be subjected to regulation where they would not have been had EU law been applicable) and, thus, prima facie, they appear to suffer a detriment, it could be that compliance with stricter regulations—or, simply, compliance with regulations—is an advantage in the eyes of consumers, employers, service-recipients, etc. See, for instance, Case 407/85, 3 Glocken (ECJ 14 July 1988) para 27. Accordingly, whether reverse discrimination is, in reality, “discrimination” in the sense that it creates a detriment, depends on the angle from which the impact of a rule is examined—see Tryfonidou ( 2009b ), p. 204.

Case 44/84, Hurd v Jones (ECJ 15 January 1986).

Joined Cases 35 and 36/82, Morson and Jhanjan (ECJ 27 October 1982).

Joined Cases C-64 and 65/96, Uecker and Jacquet (ECJ 5 June 1997).

Case C-69/88, Krantz (ECJ 7 March 1990); Case C-44/98, BASF (ECJ 21 September 1999).

Case C-190/98, Graf (ECJ 27 January 2000).

Case C-190/98, Graf (ECJ 27 January 2000) para 24.

Case C-190/98, Graf (ECJ 27 January 2000) para 25.

Joined Cases 177 and 178/82, Van de Haar (ECJ 5 April 1984) para 13; Case 103/84, Commission v Italy (ECJ 5 June 1986) para 18; Case C-126/91 Yves Rocher (ECJ 18 May 1993) para 21; Case C-420/15 U (ECJ 31 May 2017) para 20.

For case law on this issue see, most prominently, Case C-212/97, Centros (ECJ 9 March 1999) para 24–27; Case C-109/01, Akrich (ECJ 23 September 2003) para 55–56. For an analysis of the issue of abuse in EU law, see Engsig Sorensen ( 2006 ); Kjellgren ( 2000 ); De la Feria ( 2008 ); and the essays in De la Feria and Vogenauer ( 2011 ).

Moreover, in its jurisprudence the Court has made it clear that EU law (including the free movement of workers provisions) apply to the continental shelf adjacent to a Member State, the continental shelf being considered part of the MS in question under the EU law—Case C-347/10, Salemink (ECJ 17 January 2012). For further details, see White ( 2004 ), pp. 23–25.

For an exhaustive analysis of this issue see Kochenov ( 2011 ).

These are Iceland, Lichtenstein and Norway. See White ( 2004 ), pp. 10–11, 23 and 25–26.

See, most prominently, the EU-Switzerland agreement—for more on this see White ( 2004 ), p. 11. Note, however, that in recent years, and after a referendum that took place in February 2014 and in which the Swiss voted in favour of, inter alia, imposing a cap on the number of EU nationals moving to Switzerland, it was questionable whether there would continue to be free movement of persons (including workers) between Switzerland and the EU MS (see Carrera et al. 2015 ). However, the crisis has been resolved, since the Swiss parliament in December 2016 adopted legislation that gives priority to Swiss-based job seekers but avoids quotas on EU citizens and thus respects the basic principles of the free movement of persons.

White ( 2004 ), p. 26.

Case 36/74, Walrave and Koch (ECJ 12 December 1974).

Case 36/74, Walrave and Koch (ECJ 12 December 1974) para 28.

Case 237/83, Prodest (ECJ 12 July 1984) para 6. Confirmed in Case 9/88, Lopes da Veiga (ECJ 27 September 1989) para 15; Case C-60/93, Aldewereld v Staatssec-retaris van Financiën (ECJ 29 June 1994) para 14.

Case C-214/94, Boukhalfa (ECJ 30 April 1996) para 14.

Case C-214/94, Boukhalfa (ECJ 30 April 1996) para 15. Confirmed more recently in Case C-544/11, Petersen (ECJ 28 February 2013) para 40–42.

Case C-161/07, Commission v Austria (ECJ 22 December 2008) para 37.

Case C-415/93, Bosman (ECJ 15 December 1995) para 86.

The Court has departed from this distinction mostly in its case law on the free movement of goods. See, for instance, Case C-2/90, Commission v Belgium (Walloon Waste) (ECJ 9 July 1992); Case C-379/98, PreussenElektra (ECJ 13 March 2001); Case C-203/96, Dusseldorp (ECJ 25 June 1998). For a case involving the free movement of service recipients where the Court also overlooked this distinction, see Case C-158/96, Kohll (ECJ 28 April 1998).

Barnard ( 2016 ), p. 450.

This is partly reflected in Article 28.1 of Directive 2004/38.

Joined Cases C-482 and 493/01, Orfanopoulos and Oliveri (ECJ 29 April 2004) para 53.

Ziller ( 2010 ), p. 10.

Case C-100/01, Olazabal (ECJ 26 November 2002).

Case C-260/89 ERT (ECJ 18 June 1991). Confirmed in, inter alia, Case C-60/00 Carpenter [2002] ECR I-6279; Joined Cases C-482 and 493/01 Orfanopoulos [2004] ECR I-5257.

Case C-421/98, Commission v Spain (ECJ 23 November 2000).

For a detailed analysis of the derogations, see Barnard ( 2016 ), Chapter 12.

Council Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health , O.J. L 56/850 (1964).

Condinanzi et al. ( 2008 ), p. 94.

In this chapter, only Article 27–29 will be analysed. For an explanation of the procedural requirements laid down by Articles 30–33 of the Directive see Craig and de Búrca ( 2015 ), pp. 790–791.

This has also been confirmed by the Court in its case law—see, for instance, Case 30/77, Bouchereau (ECJ 27 October 1977); Case 131/79, Santillo (ECJ 22 May 1980).

Case 67/74, Bonsignore (ECJ 26 February 1975).

Article 28.2 of Directive 2004/38.

See Article16 of Directive 2004/38.

Article 28.3 of Directive 2004/38.

Cases 115 and 116/81, Adoui and Cornuaille (ECJ 18 May 1982).

Case 249/86, Commission v Germany (ECJ 18 May 1989).

Condinanzi et al. ( 2008 ), p. 97.

Case 30/77, Bouchereau (ECJ 27 October 1977) para 18.

Case 41/74, Van Duyn (ECJ 4 December 1974).

Case C-348/96, Calfa (ECJ 19 January 1999) (this is a services case).

Case C-524/06, Huber (ECJ 16 December 2008).

Chalmers et al. ( 2014 ), p. 934.

Case 41/74, Van Duyn (ECJ 4 December 1974) para 18.

Case C-268/99, Jany (ECJ 20 November 2001) para 31.

Case C-145/09, Tsakouridis (ECJ 23 November 2010) para 47.

Kostakopoulou-Dochery and Ferreira ( 2013–2014 ), p. 173.

Case C-348/09, PI (ECJ 22 May 2012).

Case C-55/94, Gebhard (ECJ 30 November 1995) para 37. In paragraph 6 of the judgment, it is made clear that these conditions also apply in the context of the other free movement of persons provisions.

Case 279/80, Webb (ECJ 17 December 1981); Case C-438/05, Viking (ECJ 11 December 2007).

Case 220/83, Commission v France (ECJ 4 December 1986).

Case C-180/89, Commission v Italy (ECJ 26 February 1991).

Case C-445/03, Commission v Luxembourg (ECJ 21 October 2004).

Joined Cases C-151 and 152/04, Nadin (ECJ 15 December 2005); Joined Cases C-128 and 129/10, Navtiliaki Etairia Thasou (ECJ 17 March 2011).

Case C-40/05, Lyyski (ECJ 11 January 2007).

Case C-255/04, Commission v France (ECJ 15 June 2006).

Case C-446/03, Marks & Spencer (ECJ 13 December 2005).

Case C-288/89, Gouda (ECJ 25 July 1991).

For more on the exception see Handoll ( 1988 ); O’Keeffe ( 1992 ); Beenan ( 2001 ); White ( 2004 ), pp. 79–85; Ziller ( 2010 ); Commission Staff Working Document, Free Movement of Workers in the Public Sector , SEC(2010) 1609 final; Minderhoud and Fridriksdottir ( 2013 ).

White ( 2004 ), p. 79.

Case 152/73, Sotgiu (ECJ 12 February 1974) para 5.

Craig and de Búrca ( 2015 ), p. 766.

Craig and de Búrca ( 2015 ), p. 768.

Case 149/79, Commission v Belgium (ECJ 17 December 1980) para 10.

Case 152/73, Sotgiu (ECJ 12 February 1974) para 4; Joined Cases 389 and 390/87, Echternach and Moritz (ECJ 15 March 1989) para 14; Case C-195/98, Österreicher Gewerkschaftsbund, Gewerkschaft Offentlicher Dienst v Republik Österreich (ECJ 30 November 2000) para 37.

Case 152/73, Sotgiu (ECJ 12 February 1974).

Case 152/73, Sotgiu (ECJ 12 February 1974); Case C-419/92, Scholz (ECJ 23 February 1994); Case C-195/98, Österreicher Gewerkschaftsbund, Gewerkschaft Offentlicher Dienst v Republik Österreich (ECJ 30 November 2000).

Other such examples are the fact that MS can directly discriminate against non-nationals in situations where they can successfully rely on the grounds of public policy, public security or public health; and, as already seen above (➔ para 69), that they can refuse admission to their territory—or they can expel from their territory—nationals of other MS, whereas under international law they are not permitted to do either concerning their own nationals. For further analysis, see Tryfonidou ( 2016 ), pp. 197–204.

White ( 2004 ), pp. 86–87.

Case C-274/96, Bickel and Franz (Opinion of AG Jacobs of 19 March 1998) para 24.

See, for instance, the recent ‘(Synthesis) Report: Socio-economic inclusion of migrant EU workers in 4 cities’ and the four separate city reports (Leeds, Frankfurt, Milan, Rotterdam) attached to it, drafted by an independent contractor on behalf of the Commission (available at http://ec.europa.eu/social/main.jsp?langId=en&catId=457&newsId=2311&furtherNews=yes, September 2015); and the Commission Communication, Reaffirming the free movement of workers: rights and major developments , COM(2010)373 final (July 2010), available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2010:0373:FIN .

Examples of such steps would be the provision of language training, setting up one-stop-shops and improving existing institutions for providing information services and for enabling migrant workers to complete the procedures that must be followed when they access the labour market of the host State, facilitate the recognition of professional qualifications, educate officials in local administrations about the requirements of EU law and the rules governing the free movement of workers, identify and address the needs of the different (diverse) categories of migrant workers. Moreover, the EU has, recently reformed the EURES network (the European jobs network) to make it easier for job seekers and employers in different MS to find each other—available at http://www.consilium.europa.eu/en/policies/labour-mobility/ .

All cited internet sources in this comment have been accessed on 9 December 2019.

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List of Cases

ECJ 19.03.1964, 75/63, Hoekstra , ECR 347 [cit. in para 21]

ECJ 11.04.1972, 76/72, Michel S , ECR 457 [cit. in para 46; 64]

ECJ 12.02.1974, 152/73, Sotgiu , ECR 153 [cit. in para 100; 102]

ECJ 04.04.1974, 167/73, Commission v France , ECR 359 [cit. in para 7; 50]

ECJ 03.07.1974, 9/74, Casagrande , ECR 773 [cit. in para 64]

ECJ 04.12.1974, 41/74, Van Duyn , ECR 1337 [cit. in para 34; 90; 92]

ECJ 12.12.1974, 36/74, Walrave and Koch . ECR 1405 [cit. in para 8; 80]

ECJ 26.02.1975, 67/74, Bonsignore , ECR 297 [cit. in para 87]

ECJ 30.09.1975, 32/75, Cristini , ECR 1085 [cit. in para 46; 63]

ECJ 08.04.1976, 48/75, Royer , ECR 497 [cit. in para 19; 36]

ECJ 07.07.1976, 118/75, Watson and Belmann , ECR 1185 [cit. in para 10; 19]

ECJ 16.12.1976, 63/76, Inzirillo , ECR 2057 [cit. in para 46; 63]

ECJ 27.10.1977, 30/77, Bouchereau , ECR 1999 [cit, in para 87; 90]

ECJ 07.02.1979, 115/78, Knoors , ECR 399 [cit. in para 71]

ECJ 28.03.1979, 175/78, Saunders , ECR 1657 [cit. in para 38; 71]

ECJ 31.05.1979, 207/78, Even , ECR 2019 [cit. in para 46]

ECJ 22.05.1980, 131/79, Santillo , ECR 1585 [cit. in para 87]

ECJ 03.07.1980, 157/79, Pieck , ECR 2171 [cit. in para 19]

ECJ 17.12.1980, 149/79, Commission v Belgium , ECR 1845 [cit. in para 101]

ECJ 17.12.1981, 279/80, Webb , ECR 3305 [cit. in para 98]

ECJ 14.01.1982, 65/81, Reina , ECR 33 [cit. in para 46]

ECJ 23.03.1982, 53/81, Levin , ECR 1035 [cit. in para 22; 23; 30]

ECJ 18.05.1982, 115 and 116/81, Adoui and Cornuaille , ECR 1665 [cit. in para 89; 90]

ECJ 27.10.1982, 35 and 36/82, Morson and Jhanjan , ECR 3723 [cit. in para 73]

ECJ 13.07.1983, 152/82, Forcheri , ECR 2323 [cit. in para 46; 63]

ECJ 05.04.1984, 177 and 178/82, Van de Haar , ECR 1797[cit. in para 75]

ECJ 28.06.1984, 180/83, Moser , ECR 2539 [cit. in para 71]

ECJ 05.07.1984, 238/83, Meade , ECR 2631 [cit. in para 25]

ECJ 12.07.1984, 237/83, Prodest , ECR 3153 [cit. in para 81]

ECJ 12.07.1984, 261/83, Castelli ECR 3199 [cit. in para 46; 63]

ECJ 13.02.1985, 267/83, Diatta , ECR 567 [cit. in para 57]

ECJ 06.06.1985, 157/84, Frascogna , ECR 1739 [cit. in para 46]

ECJ 20.06.1985, 94/84, Deak , ECR 1873[cit. in para 46; 63]

ECJ 11.07.1985, 137/84, Mutsch , ECR 2681 [cit. in para 46]

ECJ 15.01.1986, 44/84, Hurd v Jones , ECR 29 [cit. in para 72]

ECJ 23.01.1986, 298/84, Iorio , ECR 247 [cit. in para 71]

ECJ 17.04.1986, C-59/85, Reed , ECR 1283 [cit. in para 46; 57]

ECJ 03.06.1986, 139/85, Kempf , ECR 1741 [cit. in para 30]

ECJ 05.06.1986, 103/84, Commission v Italy , ECR 1759 [cit. in para 75]

ECJ 03.07.1986, 66/85, Lawrie-Blum, ECR 2121 [cit. in para 23; 27]

ECJ 04.12.1986, 220/83, Commission v France , ECR 3663 [cit. in para 98]

ECJ 18.06.1987, 316/85, Lebon , ECR 2811 [cit. in para 37, 58]

ECJ 08.12.1987, 20/87, Gauchard , ECR 4879 [cit. in para 71]

ECJ 21.06.1988, 197/86, Brown , ECR 3205 [cit. in para 31]

ECJ 14.07.1988, 407/85, 3 Glocken , ECR 4233 [cit. in para 72]

ECJ 05.10.1988, 196/87, Steymann , ECR 6159 [cit. in para 30]

ECJ 15.03.1989, C-389 and 390/87, Echternach and Moritz , ECR 723 [cit. in para 29, 65, 102]

ECJ 18.05.1989, 249/86, Commission v Germany , ECR 1263 [cit, in para 89]

ECJ 31.05.1989, 344/87, Bettray , ECR 1621 [cit. in para 31, 32]

ECJ 27.09.1989, 9/88, Lopes da Veiga , ECR I-2989 [cit. in para 81]

ECJ 29.11.1989, 379/87, Groener , ECR 3967 [cit. in para 51]

ECJ 14.12.1989, Case 3/87, R v. Ministry of Agriculture, Fisheries and Food, ex parte Agegate Ltd , ECR 4459 [cit. in para 30]

ECJ 07.03.1990, C-69/88, Krantz , ECR I-583 [cit. in para 74]

ECJ 03.10.1990, C-54 and 91/88 and C-14/89, Criminal proceedings against Niño , ECR I-3537 [cit. in para 71]

ECJ 18.10.1990, C-297/88 and 197/89, Dzodzi , ECR I-3763 [cit. in para 71]

ECJ 13.11.1990, C-308/89, Di Leo , ECR I-4185 [cit. in para 65]

ECJ 05.02.1991, C-363/89, Roux , ECR I-273 [cit. in para 39]

ECJ 26.02.1991, C-180/89, Commission v Italy , ECR I-709 [cit, in para 98]

ECJ 26.02.1991, C-292/89, Antonissen , ECR I-745 [cit. in para 36; 43]

ECJ 18.06.1991, C-260/89 ERT, ECR I-2925 [cit. in para 84]

ECJ 25.07.1991, C-288/89, Gouda , ECR I-4007 [cit. in para 98]

ECJ 04.10.1991, C-246/89, Commission v UK , ECR I-4584 [cit. in para 47]

ECJ 10.12.1991, C-179/90, Merci Convenzionali Porto di Genova , ECR I-5889 [cit. in para 50]

ECJ 28.01.1992, C-332/90, Steen , ECR I-341 [cit. in para 71]

ECJ 26.02.1992, C-357/89, Raulin , ECR I-1027 [cit. in para 21]

ECJ 19.03.1992, C-60/91, Morais , ECR I-2085 [cit. in para 71]

ECJ 07.07.1992, C-369/90, Micheletti , ECR I-4239 [cit. para 25]

ECJ 07.07.1992, C-370/90, Singh , ECR I-4265 [cit. in para 38; 60]

ECJ 09.07.1992, C-2/90, Commission v Belgium (Walloon Waste) , ECR I-4431 [cit. in para 83]

ECJ 26.01.1993, C-112/91, Werner , ECR I-429 [cit. in para 39; 42]

ECJ 31.03.1993, C-19/92, Kraus , ECR I-1663 [cit. in para 50; 52]

ECJ 18.05.93, C-126/91 Yves Rocher , ECR I-2361 [cit. in para 75]

ECJ 23.02.1994, C-419/92, Scholz , ECR I-505 [cit. in para 38; 102]

ECJ 29.06.1994, C-60/93, Aldewereld v Staatssec-retaris van Financiën , ECR I-2991 [cit. in para 81]

ECJ 14.07.1994, C-379/92, Peralta , ECR I-3453 [cit. in para 71]

ECJ 14.02.1995, C-279/93, Schumacker , ECR I-225 [cit. in para 48; 51]

ECJ 04.05.1995, C-7/94, Gaal , ECR I-1031 [cit. in para 64]

ECJ 30.11.1995, C-55/94, Gebhard , ECR I-4165 [cit, in para 97]

ECJ 15.12.1995, C-415/93, Bosman , ECR I-4921 [cit. in para 8; 9; 50; 68; 69; 83]

ECJ 30.04.1996, C-214/94, Boukhalfa , ECR I-2253 [cit. in para 81]

ECJ 23.05.1996, C-237/94, O’Flynn , ECR I-2617 [cit. in para 51]

ECJ 29.05.1997, C-299/95, Kremzow , ECR I-2629 [cit. in para 71]

ECJ 05.06.1997, C-64 and 65/96, Uecker and Jacquet , ECR I-3171 [cit. in para 73]

ECJ 15.01.1998, C-15/96, Schöning-Kougebetopoulou , ECR I-47 [cit. in para 51]

Opinion of AG Jacobs 19.03.1998, C-274/96, Bickel and Franz , ECR I-7639 [cit. in para 103]

ECJ 28.04.1998, C-158/96, Kohll , ECR I-1931 [cit. in para 83]

ECJ 07.05.1998, C-350/96, Clean Car , ECR I-2521 [cit. in para 9; 51]

ECJ 12.05.1998, C-336/96, Gilly , ECR I-2793 [cit. in para 48]

ECJ 25.06.1998, C-203/96, Dusseldorp , ECR I-4075 [cit. in para 83]

ECJ 26.11.1998, C-1/97, Birden , ECR I-7747 [cit. in para 31]

ECJ 19.01.1999, C-348/96, Calfa , ECR I-11 [cit. in para 90]

ECJ 09.03.1999, C-212/97, Centros , ECR I-1459 [cit. in para 76]

ECJ 08.06.1999, C-337/97, Meeusen , ECR I-3289 [cit. in para 29]

ECJ 14.09.1999, C-391/97, Gschwind , ECR I-5451 [cit. in para 51]

ECJ 27.01.2000, C-190/98, Graf , ECR I-493 [cit. in para 74]

ECJ 06.06.2000, C-281/98, Angonese , ECR I-4139 [cit. in para 9; 52]

ECJ 03.10.2000, C-411/98, Ferlini , ECR I-8081 [cit. in para 8]

ECJ 23.11.2000, C-421/98, Commission v Spain , ECR I-10375 [cit. in para 84]

ECJ 30.11.2000, C-195/98, Österreicher Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst v Austria , ECR I-10497 [cit. in para 102]

ECJ 20.02.2001, C-192/99, R v Secretary of State for the Home Department, ex parte Kaur , ECR I-1237 [cit. in para 25]

ECJ 13.03.2001, C-379/98, PreussenElektra , ECR I-2099 [cit. in para 83]

ECJ 20.03.2001, C-33/99, Fahmi , ECR I-2415 [cit. in para 65]

ECJ 31.05.2001, C-283/99, Commission v Italy , ECR I-4363 [cit. in para 50]

ECJ 20.11.2001, C-268/99, Jany , ECR I-8615 [cit. in para 92]

ECJ 11.07.2002, C-224/98, D’Hoop , ECR I-6191[cit. in para 52]

ECJ 11.07.2002, C-60/00, Carpenter , ECR I-6279 [cit. in para 62; 84]

ECJ 17.09.2002, C-413/99, Baumbast and R , ECR I-7091 [cit. in para 57; 65]

ECJ 16.11.2002, C-100/01, Olazabal , ECR I-10981 [cit. in para 84]

ECJ 12.12.2002, C-385/00, De Groot , ECR I-11819 [cit. in para 40; 42]

ECJ 23.09.2003, C-109/01, Akrich , ECR I-9607 [cit. in para 60; 76]

ECJ 02.10.2003, C-232/01, Van Lent , ECR I-11525 [cit. in para 34; 68]

ECJ 06.11.2003, C-413/01, Ninni-Orasche , ECR I-13187 [cit. in para 22; 27]

ECJ 13.11.2003, C-209/01, Schilling and Fleck-Schilling , ECR I-13389 [cit. in para 40; 42]

ECJ 23.03.2004, C-138/02, Collins , ECR I-2703 [cit. in para 26; 37; 38; 51]

ECJ 29.04.2004, C-482 and 493/01, Orfanopoulos and Oliveri , ECR I- [cit. in para 26; 84]

ECJ 29.04.2004, C-171/02, Commission v Portugal , ECR I-5645 [cit. in para 51]

ECJ 07.09.2004, C-456/02, Trojani , ECR I-7573 [cit. in para 32]

ECJ 19.10.2004, C-200/02, Zhu and Chen , ECR I-9925 [cit. in para 58]

ECJ 21.10.2004, C-445/03, Commission v Luxembourg , ECR I-10191 [cit, in para 98]

ECJ 17.02.2005, C-215/03, Oulane , ECR I-1215 [cit. in para 19]

ECJ 17.03.2005, C-109/04, Kranemann , ECR I-2421 [cit. in para 34]

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Tryfonidou, A. (2021). Article 45 [Free Movement of Workers]. In: Blanke, HJ., Mangiameli, S. (eds) Treaty on the Functioning of the European Union – A Commentary. Springer Commentaries on International and European Law. Springer, Cham. https://doi.org/10.1007/978-3-030-43511-0_46

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Constitution Of India

Article 45 of Indian Constitution

Article 45 of Indian Constitution: Provision for free and compulsory education for children

Article 45 Provision for free and compulsory education for children of Indian Constitution

The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

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EQUALITY BEYOND REACH? A CRITICAL ANALYSIS OF ARTICLE 45 OF THE CONSTITUTION IN THE CONTEXT OF MATRIMONIAL PROPERTY IN KENYA

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THE CONCEPT OF WORKER (IN ARTICLE 45 TFEU)

[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 29 th 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 27 th 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 23 th 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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Article 45 Will Roll Back Web Security by 12 Years

The EU is poised to pass a sweeping new regulation , eIDAS 2.0. Buried deep in the text is Article 45, which returns us to the dark ages of 2011, when certificate authorities (CAs) could collaborate with governments to spy on encrypted traffic—and get away with it. Article 45 forbids browsers from enforcing modern security requirements on certain CAs without the approval of an EU member government. Which CAs? Specifically the CAs that were appointed by the government, which in some cases will be owned or operated by that selfsame government. That means cryptographic keys under one government’s control could be used to intercept HTTPS communication throughout the EU and beyond.

This is a catastrophe for the privacy of everyone who uses the internet, but particularly for those who use the internet in the EU. Browser makers have not announced their plans yet, but it seems inevitable that they will have to create two versions of their software: one for the EU, with security checks removed, and another for the rest of the world, with security checks intact. We’ve been down this road before , when export controls on cryptography meant browsers were released in two versions: strong cryptography for US users, and weak cryptography for everyone else. It was a fundamentally inequitable situation and the knock-on effects set back web security by decades.

The current text of Article 45 requires that browsers trust CAs appointed by governments, and prohibits browsers from enforcing any security requirements on those CAs beyond what is approved by ETSI . In other words, it sets an upper bar on how much security browsers can require of CAs, rather than setting a lower bar. That in turn limits how vigorously browsers can compete with each other on improving security for their users.

This upper bar on security may even ban browsers from enforcing Certificate Transparency , an IETF technical standard that ensures a CA’s issuing history can be examined by the public in order to detect malfeasance. Banning CT enforcement makes it much more likely for government spying to go undetected.

Why is this such a big deal? The role of a CA is to bootstrap encrypted HTTPS communication with websites by issuing certificates. The CA’s core responsibility is to match web site names with customers, so that the operator of a website can get a valid certificate for that website, but no one else can. If someone else gets a certificate for that website, they can use it to intercept encrypted communications, meaning they can read private information like emails. We know HTTPS encryption is a barrier to government spying because of the NSA’s famous “ SSL added and removed here ” note. We also know that misissued certificates have been used to spy on traffic in the past. For instance, in 2011 DigiNotar was hacked and the resulting certificates used to intercept emails for people in Iran. In 2015, CNNIC issued an intermediate certificate used in intercepting traffic to a variety of websites. Each CA was subsequently distrusted .

Distrusting a CA is just one end of a spectrum of technical interventions browsers can take to improve the security of their users. Browsers operate “root programs” to monitor the security and trustworthiness of CAs they trust. Those root programs impose a number of requirements varying from “how must key material be secured” to “how must validation of domain name control be performed” to “what algorithms must be used for certificate signing.” As one example, certificate security rests critically on the security of the hash algorithm used. The SHA-1 hash algorithm , published in 1993, was considered not secure by 2005. NIST disallowed its use in 2013. However, CAs didn't stop using it until 2017, and that only happened because one browser made SHA-1 removal a requirement of its root program. After that, the other browsers followed suit, along with the CA/Browser Forum .

The removal of SHA-1 illustrates the backwards security incentives for CAs. A CA serves two audiences: their customers, who get certificates from them, and the rest of the internet, who trusts them to provide security. When it comes time to raise the bar on security, a CA will often hear from their customers that upgrading is difficult and expensive, as it sometimes is. That motivates the CA to drag their feet and keep offering the insecure technology. But the CA’s other audience, the population of global internet users, needs them to continually improve security. That’s why browser root programs need to (and do) require a steadily increasing level of security of CAs. The root programs advocate for the needs of their users so that they can provide a more secure product. The security of a browser’s root program is, in a very real way, a determining factor in the security of the browser itself.

That’s why it’s so disturbing that eIDAS 2.0 is poised to prevent browsers from holding CAs accountable. By all means, raise the bar for CA security, but permanently lowering the bar means less accountability for CAs and less security for internet users everywhere.

The text isn't final yet, but is subject to approval behind closed doors in Brussels on November 8.

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Article 45 TFEU

• Published: May 2019
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Article 39 EC Freedom of movement for workers shall be secured within the Union.

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Artikel 2(...) 4.Ieder heeft het recht het land te verlaten, behoudens in de gevallen, bij de wet bepaald.

Article 14 (1) The freedom of movement and of residence is guaranteed. (2) Everyone who is legitimately staying within the territory of the Czech and Slovak Federal Republic has the right freely to leave it. (3) These freedoms may be limited by law if such is unavoidable for the security of the state, the maintenance of public order, the protection of the rights and freedoms of others or, in demarcated areas, for the purpose of protecting nature. (4) Every citizen is free to enter the territory of the Czech and Slovak Federal Republic. No citizen may be forced to leave her homeland. (5) An alien may be expelled only in cases specified by the law.

Článek 14 (1) Svoboda pohybu a pobytu je zaručena. (2) Každý, kdo se oprávněně zdržuje na území České a Slovenské Federativní Republiky, má právo svobodně je opustit. (3) Tyto svobody mohou být omezeny zákonem, jestliže je to nevyhnutelné pro bezpečnost státu, udržení veřejného pořádku, ochranu zdraví nebo ochranu práv a svobod druhých a na vymezených územích též z důvodu ochrany přírody. (4) Každý občan má právo na svobodný vstup na území České a Slovenské Federativní Republiky. Občan nemůže být nucen k opuštění své vlasti. (5) Cizinec může být vyhoštěn jen v případech stanovených zákonem.

Chapter 2 - Fundamental rights and freedom: Article 7 No Swedish citizen may be deported from or refused entry into the Realm. No Swedish citizen who is domiciled in the Realm or who has previously been domiciled in the Realm may be deprived of his or her citizenship. It may however be prescribed that children under the age of eighteen shall have the same nationality as their parents or as one parent; Article 8 Everyone shall be protected in their relations with the public institutions against deprivations of personal liberty. All Swedish citizens shall also in other respects be guaranteed freedom of movement within the Realm and freedom to depart the Realm.

2 kapitlet - Grundläggande fri- och rättigheter: 7 § Ingen svensk medborgare får landsförvisas eller hindras att resa in i riket. Ingen svensk medborgare som är eller har varit bosatt i riket får fråntas sitt medborgarskap. Det får dock föreskrivas att barn under arton år i fråga om sitt medborgarskap ska följa föräldrarna eller en av dem; 8 § Var och en är gentemot det allmänna skyddad mot frihetsberövanden. Den som är svensk medborgare är även i övrigt tillförsäkrad frihet att förflytta sig inom riket och att lämna det.

Artículo 19Los españoles tienen derecho a elegir libremente su residencia y a circular por el territorio nacional. Asimismo, tienen derecho a entrar y salir libremente de España en los términos que la ley establezca. Este derecho no podrá ser limitado por motivos políticos o ideológicos.

Section 19 Spaniards have the right to freely choose their place of residence, and to freely move about within the national territory. Likewise, they have the right to freely enter and leave Spain subject to the conditions to be laid down by the law. This right may not be restricted for political or ideological reasons.

Article 32 Everyone has the right to freedom of movement, to choose his place of residence, to leave the country and to return at any time.This right may be limited by law, but only where this is necessary to ensure the course of criminal proceedings, to prevent the spread of infectious diseases, to protect public order or if the defence of the state so demands.Entry into the country by aliens, and the duration of their stay in the country, may be limited on the basis of law.

32. člen Vsakdo ima pravico, da se prosto giblje in si izbira prebivališče, da zapusti državo in se vanjo kadarkoli vrne. Ta pravica se sme omejiti z zakonom, vendar samo, če je to potrebno, da bi se zagotovil potek kazenskega postopka, da bi se preprečilo širjenje nalezljivih bolezni, se zavaroval javni red, ali če to zahtevajo interesi obrambe države. Tujcem se na podlagi zakona lahko omeji vstop v državo in čas bivanja v njej.

Article 23 (1) Freedom of movement and right of abode are guaranteed. (2) Everyone who is rightfully staying on the territory of the Slovak Republic has the right to freely leave this territory. (3) Freedoms under paragraphs 1 and 2 may be restricted by law, if it is necessary for the security of the state, to maintain public order, protect the health and the rights and freedoms of others, and, in designated areas, also in the interest of environmental protection. (4) Every citizen has the right to freely enter the territory of the Slovak Republic. A citizen may not be forced to leave the homeland and may not be deported. (5) A foreign national may be deported only in cases laid down by law.

Čl. 23 (1) Sloboda pohybu a pobytu sa zaručuje. (2) Každý, kto sa oprávnene zdržiava na území Slovenskej republiky, má právo toto územie slobodne opustiť. (3) Slobody podľa odsekov 1 a 2 môžu byť obmedzené zákonom, ak je to nevyhnutné pre bezpečnosť štátu, udržanie verejného poriadku, ochranu zdravia alebo ochranu práv a slobôd iných a na vymedzených územiach aj v záujme ochrany prírody. (4) Každý občan má právo na slobodný vstup na územie Slovenskej republiky. Občana nemožno nútiť, aby opustil vlasť, a nemožno ho vyhostiť. (5) Cudzinca možno vyhostiť iba v prípadoch ustanovených zákonom.

Article 25(1) The right of free movement within the national territory and abroad is guaranteed. The law shall lay down the conditions for the exercise of this right. (2) Every citizen is guaranteed the right to establish his domicile or residence anywhere in the country, to emigrate, and to return to his country.

Articolul 25(1) Dreptul la libera circulatie, în tara si în strainatate, este garantat. Legea stabileste conditiile exercitarii acestui drept. (2) Fiecarui cetatean îi este asigurat dreptul de a-si stabili domiciliul sau resedinta în orice localitate din tara, de a emigra, precum si de a reveni în tara.

Artigo 44.º (Direito de deslocação e de emigração) 1. A todos os cidadãos é garantido o direito de se deslocarem e fixarem livremente em qualquer parte do território nacional. 2. A todos é garantido o direito de emigrar ou de sair do território nacional e o direito de regressar. Article 44 (Right to travel and to emigrate) (1) The right of all citizens to travel and settle freely anywhere in the national territory is guaranteed. (2) The right to emigrate or leave the national territory and the right to return to it is guaranteed to everyone.

Article 44 (Right to travel and to emigrate) (1) The right of all citizens to travel and settle freely anywhere in the national territory is guaranteed. (2) The right to emigrate or leave the national territory and the right to return to it is guaranteed to everyone.

Article 52.1. Freedom of movement as well as the choice of place of residence and sojourn within the territory of the Republic of Poland shall be ensured to everyone.2. Everyone may freely leave the territory of the Republic of Poland.3. The freedoms specified in paras. 1 and 2 above may be subject to limitations specified by statute.4. A Polish citizen may not be expelled from the country nor forbidden to return to it.5. Anyone whose Polish origin has been confirmed in accordance with statute may settle permanently in Poland.

Art. 52.1. Każdemu zapewnia się wolność poruszania się po terytorium Rzeczypospolitej Polskiej oraz wyboru miejsca zamieszkania i pobytu.2. Każdy może swobodnie opuścić terytorium Rzeczypospolitej Polskiej.3. Wolności, o których mowa w ust. 1 i 2, mogą podlegać ograniczeniom określonym w ustawie. 4. Obywatela polskiego nie można wydalić z kraju ani zakazać mu powrotu do kraju.5. Osoba, której pochodzenie polskie zostało stwierdzone zgodnie z ustawą, może osiedlić się na terytorium Rzeczypospolitej Polskiej na stałe.

Article 44(1) No citizen of Malta shall be deprived of his freedom of movement, and for the purpose of this article the said freedom means the right to move freely throughout Malta, the right to reside in any part of Malta, the right to leave and the right to enter Malta. (2) Any restriction on a citizen’s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this article.

Article 32. Citizens may move and choose their place of residence in Lithuania freely and may leave Lithuania freely. These rights may not be restricted otherwise than by law when this is necessary for the protection of the security of the State or the health of people, or for the administration of justice. Citizens may not be prohibited from returning to Lithuania. Everyone who is Lithuanian may settle in Lithuania.

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(2) Citizenship of the Union confers on every citizen of the Union the right of free movement, subject to certain limitations and conditions. Directive 2004/38/EC of the European Parliament and of the Council (3) gives effect to that right. Article 45 of the Charter of Fundamental Rights of the European Union (the Charter) also provides for freedom of movement and residence. Freedom of movement entails the right to exit and enter Member States with a valid identity card or passport.

Preamble: ‘(2) The free movement of workers is also a key element in the development of a genuine Union labour market, allowing workers to move to areas where there are labour shortages or more employment opportunities, helping more people find posts which are better suited to their skills and overcoming bottlenecks in the labour market. (3) The free movement of workers gives every citizen of the Union, irrespective of his or her place of residence, the right to move freely to another Member State in order to work there and/or to reside there for work purposes. It protects them against discrimination on grounds of nationality as regards access to employment, conditions of employment and work, in particular with regard to remuneration, dismissal, and tax and social advantages, by ensuring their equal treatment, under national law, practice and collective agreements, in comparison to nationals of that Member State. Such rights should be enjoyed without discrimination by all Union citizens exercising their right to free movement, including permanent, seasonal and frontier workers. The free movement of workers needs to be distinguished from the freedom to provide services, which includes the right of undertakings to provide services in another Member State, for which they may post their own workers to another Member State temporarily in order for them to carry out the work necessary to provide services in that Member State.‘ Article 3 - Defence of rights ‘1. Member States shall ensure that after possible recourse to other competent authorities including, where they deem it to be appropriate, conciliation procedures, judicial procedures, for the enforcement of obligations under Article 45 TFEU and under Articles 1 to 10 of Regulation (EU) No 492/2011, are available to all Union workers and members of their family who consider that they have suffered or are suffering from unjustified restrictions and obstacles to their right to free movement or who consider themselves wronged by a failure to apply the principle of equal treatment to them, even after the relationship in which the restriction and obstacle or discrimination is alleged to have occurred has ended.‘

Preamble: ‘(2) The TFEU provides that the Union is to develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows and fair treatment of third-country nationals residing legally in Member States. To that end, the European Parliament and the Council are to adopt measures on the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, as well as the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States.‘ ‘(26) While the specific mobility scheme established by this Directive should lay down autonomous rules regarding entry and stay for the purpose of work as an intra-corporate transferee in Member States other than the one that issued the intra-corporate transferee permit, all the other rules governing the movement of persons across borders as laid down in the relevant provisions of the Schengen acquis continue to apply.‘

Preamble: ‘(26) The exercise of the right of freedom of movement for workers would be facilitated by setting up the means to support clearance in order to make the labour market fully accessible to both workers and employers. A common IT platform should therefore be further developed at Union level and run by the Commission. Securing that right means empowering workers to gain access to employment opportunities throughout the Union.‘ ‘(29) In order to promote freedom of movement for workers, all job vacancies made publicly available through PES and other EURES Members or, where relevant, EURES Partners, should be published on the EURES portal. However, in specific circumstances and with the objective of ensuring that the EURES portal contains only information relevant for mobility within the Union, Member States should be allowed to provide employers with the possibility not to have a job vacancy published on the EURES portal following an objective assessment by the employer of the requirements relating to the job in question, namely specific skills and competences required in order to adequately perform the job duties, on the basis of which the employer justifies not publishing the vacancy for those reasons alone.‘ ‘(42) Support services for workers are connected to the exercise of their fundamental freedom of movement as workers under Union law and should be free of charge. However, support services for employers may be subject to a fee, in accordance with national law and practice.‘

Preamble: ‘(9) It is necessary to consolidate the social dimensions of the internal market. Given the need to enhance confidence in the internal market, including the free movement of services, through ensuring respect for workers' rights, it is necessary to ensure that the respective rights of workers and entrepreneurs to freedom of movement are accorded equal status throughout the Union.‘ ‘(17) In accordance with Articles 45 and 46 TFEU, Regulation (EU) No 492/2011 lays down provisions intended to achieve freedom of movement for workers on a non-discriminatory basis by ensuring the close cooperation of the central employment services of Member States with one another and with the Commission. EURES, which is the European network of employment services, should promote the better functioning of the labour markets by facilitating the voluntary transnational cross-border geographical mobility of workers, providing greater transparency on the labour market, ensuring the clearance of vacancies and applications for employment and supporting activities in the areas of placement, recruitment, advice and guidance services at national and cross-border level, thereby contributing to the objectives of Europe 2020. Member States should be encouraged to integrate EURES services, making them available in a "one-stop shop", where appropriate.‘

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8 wounded in shootout involving police and several people in Pennsylvania

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ALLENTOWN, Pa. (AP) — Eight people were wounded in a shootout with police in eastern Pennsylvania, authorities said.

The shooting in Allentown was reported around 6:45 p.m. Sunday, police said. The responding officers saw several people actively shooting at each other and officers soon engaged with the shooters.

The wounded were being treated at hospitals for various injuries that were not considered life-threatening, police said, though one person did undergo emergency surgery. No officers were injured.

Yunior Peralta-Quintana, 21, of Bethlehem, was among the shooters and faces several charges, including attempted homicide and aggravated assault. He was being held without bail, and it was not known Monday if he has retained an attorney.

Police said no further details about the shooting would be released at this time. It wasn’t clear if Peralta-Quintana was among the wounded or if the victims were struck by civilian or police gunfire.

A motive for the shooting remains under investigation, police said, and more arrests are possible.

The shooting occurred near the site of the city’s annual Dominican Festival, but police said it’s not yet known if the incident stemmed from something that occurred at the event.