The Commission Communication, Modernising labour law to meet the challenges of the 21st century [COM(2007) 627 final], notes that, outside the specific context of the freedom of movement of workers, most EU labour law legislation leaves the definition of ‘worker’ to Member States. However, while there may not be one common, universally applicable definition, it is clear from the application of EU directives that, except in cases specifically defined as excluding such categories, the definition of a worker includes those who are economically dependent and the self-employed. It also covers those who are employed on temporary contracts and those who are engaged through labour agencies. It covers those posted to work in the territory of another Member State (posted workers), those defined as frontier workers, and migrant and third-country workers.
The case law of the Court of Justice of the European Union (CJEU) has refused to accept Member State definitions that would limit the definition of a worker to those with a contract of employment and has favoured the meaning that would cover anyone engaged in economic activity. The Court’s case law extended the meaning of worker beyond employee in order to cover other people engaged in economic activity, even without a contract of employment, and even including those without a contract at all but who are seeking work (R. v. Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen, Case C-292/89). However, within specific directives, definitions of a worker can be found which are significantly narrower. For example, Article 3(a) of the 1989 Framework Directive on Health and Safety (1989 Framework Directive on Health and Safety (89/391/EEC) defines a worker as ‘any person employed by an employer, including trainees and apprentices but excluding domestic servants’.
A recurring problem, therefore, is that the terms ‘worker’ and ‘employee’ are used in different EU directives without always being defined. Where there are different definitions they reflect specific policy objectives. For example, in order to secure the Common Market objective of the free movement of workers, the limited definition of employee was found to be inadequate for the wider policy goal of creating a single market where ‘freedom of movement for workers shall be secured within the Union’ [Article 45(1) of the Treaty of the European Union]. For this reason, the CJEU, very early in the history of the European Community, decided that ‘worker’ was a Community concept [Hoekstra (née Unger) v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, Case 75/63].
There is also more recent case law defining a worker. For example, to be considered a worker under EU law, a person must have had genuine and effective employment, normally of at least 10 hours a week [Kempf (Case-139/85) and Megner and Scheffel (Case C-444/93)].
In Hava Genc v. Land Berlin (Case C-14/09), the CJEU established criteria for the purposes of concrete and individual assessment of whether employment of fewer than 10–12 hours per week is genuine and effective. These criteria can include entitlement to paid leave, remuneration during illness, the duration of the employment and a collective agreement that applies to the employment. In this case, the employment was for 5.5 hours a week.
Furthermore, the CJEU ruled in Franca Ninni-Orasche v. Bundesminister für Wissenschaft, Verkehr und Kunst (Case C-413/01) that a fixed-term contract of employment for 10 weeks was sufficient for the applicant to be considered a worker.