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