This chapter explores the relationship between the EU and national systems of labour law. It explains the compromise reached in the Treaty of Rome and how it has begun to unravel. Both EU internal market law and the process of first creating and now governing the Eurozone in a time of crisis have had significant negative effects on the ability of the Member States to preserve and develop national systems of labour law. What has been lost at the national level has not been replaced at the European level, despite the gradual increase in the EU’s competence in the social field. While the new constitutional structure agreed at the Treaty of Lisbon offers some comfort, particularly as regards the relationship between economic freedoms and fundamental rights, it is important that all actors involved in the making of EU law find a better way to reconcile ‘the economic’ and ‘the social’.
This contribution provides a critical analysis of the free movement of workers in the European Union. It starts by recalling the legal framework, describing the main rights guaranteed to migrant EU workers by the Treaty and secondary legislation, as interpreted by the European Court of Justice. It then focuses on some problematic areas of the law: the notion of ‘genuine activity’, which is both nebulous and random in its application; and the notion of ‘remuneration’ which, at present, risks excluding atypical employment contracts from the protection of the Treaty (such as zero hours contracts and unpaid internships) as well as work provided in the domestic context, even though those activities have an economic value for the recipient. The chapter then turns to a brief analysis of the derogations imposed on workers from acceding countries, to conclude that the free movement of workers risks being undermined by protectionist rhetoric.