A new article by Charlotte O’Brien has been published in the Common Market Law Review. Titled “Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights”, it puts forward the argument that the European Court of Justice’s increasing tolerance of nationality-discrimination creates a moral vacuum at the heart of free movement law, which is susceptible to exploitation by Member States imposing their own definitions of work. The full abstract is re-produced below. The article is available to view here.
As the last traces of EU citizenship disappear, the definitional boundary between work and inactivity becomes more critical. The ECJ’s increasing tolerance of nationality-discrimination creates a moral vacuum at the heart of free movement law, which is being exploited by Member States to impose their own definitions of work. Migrant workers on low incomes and in insecure jobs are at risk of exclusion from any equal treatment, which is especially concerning as labour market patterns change and zero hours contracts proliferate. The working poor are alienated, while the benefits of free movement are reserved for the better resourced. These domestic distortions of EU law feed back into, and distort in turn, EU law at its source – a prime example being the proposed ‘in-work benefit brake’ in the UK-EU New Settlement.