Laisvas darbuotojų judėjimas – diskriminacijos pilietybės pagrindu draudimas

Abstract

Free movement of goods is a fundamental right of European Communities. It creates common labor market in the Communities. Article 39 (ex 49) of the EC Treaty provides the worker with a possibility to exercise his freedom of movement choosing his place of work anywhere in the EU territory.
This article analyzes the workers right not to be discriminated against on the basis of nationality. The work seeks to overview the concept of discrimination and the problem areas of interpretation.
The work further analyzes the concepts of direct and indirect discrimination as well as problems of application. The author poses questions whether European Communities law also prohibits discrimination of their own nationals and whether the free movement of goods should prohibit application of discriminatory measures only or should also include non-discriminatory ones.
The author employs comparative method analyzing the jurisprudence of the ECJ and evaluating the opinions of the EU law scholars.
The article makes the following observations:
The right not to be discriminated against on the basis of nationality is a fundamental right in the free movement of workers. It provides that EU nationals may not be treated worse than respective nationals of the Member States.
Although the EU law developments and increasing integration makes amends to the content of free movement of workers. Scholars essentially agree that in the attempts to realize the aims of the EC treaty, prohibition of indirect discrimination is not sufficient; it is necessary to prohibit all barriers to free movement of workers.
Two groups of arguments for widening the scope of Article 39 may be distinguished. The first one flows from interpretation of Article 39. Literary, systematic and teleological methods of interpretation lead to a conclusion that EC Treaty article 39 should be interpreted as prohibiting nondiscriminatory measures.
The other group of arguments flows from the ECJ jurisprudence. The author considers that the most important of them should be an argument that as ECJ doctrine of non-discriminatory restrictions has been applied in respect of other internal market freedoms, i.e. primarily in the free movement of goods, and later with respect to the freedom of services, and all freedoms of internal market are intended to facilitate creation of the common market, described in Article 3 of the EC treaty as abolition of barriers to the free movement of goods, persons and services and capital, it follows that their respective interpretation cannot differ. Because the ECJ has applied the doctrine of prohibition of restrictions to free movement of goods and services, this doctrine should also be invoked with respect to the free movement of persons.