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VÁCLAV ŠMEJKAL CYIL 7 ȍ2016Ȏ
migrants or in a situation of a long-term unemployment after just a short working
activity in another Member State. Though it may sound socially insensitive, these
are not situations which would be decisive for the functioning of the EU internal
market as the material basis of integration, or which may or should help to save the
vanishing solidarity between the nationals of different EU Member States.
Attention should rather be directed to the question of whether the CJEU is
somehow narrowing its definition of an EU-worker or whether it considers any
restriction on the claims that EU citizens with worker status may have on the
social system of the host Member State. Here, it seems that nothing of the sort is
occurring.62 In its decision Saint-Prix from June 2014 63 the CJEU did not hesitate to
protect – by granting the status of EU worker – the demand for income support to
a woman who gave up work because of the physical constraints of the late stages of
pregnancy and the aftermath of childbirth – provided she returns to work or finds
another job within a reasonable period after the birth of her child (para 47). The
important thing was that the CJEU did not fail to emphasize that the concept of
“worker” within the meaning of Article 45 TFEU, in so far as it defines the scope of
a fundamental freedom provided for by the FEU Treaty, must be interpreted broadly
(para 33 ). What is equally important seems to be the CJEU’s finding that Directive
2004/38 (which in Art. 7 (3) requires the preservation of the status of worker for
those who are temporarily unable to work as the result of an illness or accident)
cannot by itself limit the scope of the concept of worker within the meaning
of the TFEU (para 32). In the case of economically active EU-migrants, the
CJEU therefore continues to apply an extensive approach to their rights in the host
Member State. Directive 2004/38, which was in the case of economically inactive
applicants – Alimanovic – considered by the CJEU to be exhaustive guidance on the
questions of preservation or loss of the status of worker of those who worked less
than a year, was here interpreted as open to necessary extensions when dealing with
the consequences of a job interruption due to physical ailments (paras 40, 44, 46).
Even the CJEU’s postscript: provided she returns to work or finds another job within
a reasonable period after the birth of her child, can be understood as an attempt to
emphasize that all EU citizens who want to work effectively in another Member
State must continue to enjoy the widest protection by EU law.64
62 European Commission still presents on the official website of DG Employment, Social Affairs &
Inclusion as the valid case law for the definition of EU-worker the “classic” judgments ranging from
C-53/81 Levin from 1982 till the already quoted C-46/12 L.N. from 2013, where the CJEU broadly
interpreted this term. >
accessed 22 April 2016.
63 Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions EU:C:2014:2007.
64 The CJEU demonstrated its continuous support for the rights of EU-workers and their family members
also in the reasoning of the recent cases C-456/12 O. v Minister voor Immigratie, Integratie en Asiel
and Minister voor Immigratie, Integratie en Asiel v B. EU:C:2014:135 and C-457/12 S. v Minister voor
Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v G. EU:C:2014:136.