Article 267 & 45 TFEU

Overview

Due to the large number of Member States within the EU, there naturally exists a wide variety of domestic laws within the Union, and thus a wide variety of legal environments in which EU law must operate. In addition to the variety in the domestic laws of each state, the extent of their discretion in implementing EU law depends on the measure concerned. In effect, this means that each law passed by the Union could potentially give rise to 27 different interpretations of the same piece of legislation, leading to legal inconsistency (as noted in Rheinmühlen-Düsseldorf^[1]). This means that there is naturally some scope for confusion and a subsequent need for further clarification of the law.

With this problem in mind, Article 267 of the Treaty on the Functioning of the European Union (TFEU) provides for the mechanism of preliminary rulings by the Court of Justice of the European Union (CJEU), the judicial institution comprising the Court of Justice (often called the ECJ) and the General Court. These rulings in turn clarify points of EU law (in specific circumstances laid out below) and provide further guidance on the implementation of the relevant legislation, meaning that each State is able to implement the law in a way which is both in line with EU jurisprudence, and furthermore in a manner which is likely to be similar to that of other Member States.

It is of note that this process is by no means instantaneous – cases can take many months to be decided, causing delay and expense for the parties.^[2] In 2025, the average duration of preliminary ruling proceedings before the Court of Justice was 16.9 months. Expedited procedures, and an urgent procedure for certain freedom, security and justice cases, can shorten the time required.

The Article 267 Mechanism

The Article creates a three stage process through which national courts obtain and apply a preliminary ruling – referral, ruling, and application.

The first stage is that of national referral. Domestic courts are able to ask for clarification on two specific aspects of EU law, denoted in the Article under (a) and (b). The first is clarification on the interpretation of EU Treaty law, that is, the law contained in the Treaty on European Union (TEU), the TFEU, the amending Treaties and the Treaties of Accession.^[3]

The second is on the validity and interpretation of acts of EU institutions, bodies, offices or agencies. The scope of these enquiries is relatively large, extending not only to regulations, directives and decisions of EU bodies, but also to opinions and recommendations issued by those bodies (as per Grimaldi v Fonds des Maladies Professionnelles^[4]). Indeed, in Deutsche Shell AG v Hauptzollamt Hamburg^[5] the scope of the ECJ’s jurisdiction extended to subjects as subtle as the ‘arrangements’ made by a joint committee established under an international agreement concluded by the Community. It was also noted in the above case that there is no need for the subject of a preliminary ruling to be an element of the law with compulsory effect (such as a regulation or directive); the ECJ instead can rule on matters which national courts are merely obliged to take account of.^[6]

This being said, there are some limitations on the scope of Article 267. The ECJ will not rule on hypothetical matters (as per Lourenço Dias (Manuel José) v Director da Alfândega do Porto^[7]). Furthermore, the ECJ limits itself to ruling on matters of EU law, and thus requires that each request clearly states the relevant facts and domestic law, the EU provisions at issue and why an answer is necessary to decide the case.^[8]

Furthermore, the courts which may petition the ECJ must qualify as a court or tribunal under EU law. Relevant factors include establishment by law, permanence, compulsory jurisdiction, an inter partes procedure, application of rules of law and independence. State recognition alone is insufficient. Ordinary private contractual arbitration and mediation processes do not qualify (as per Nordsee v Reederei Mond).^[9]

A national court may refer a question where an answer is necessary to give judgment. A court against whose decision there is no judicial remedy must refer a necessary question of interpretation unless the point is already settled by the Court’s case law (acte éclairé) or the correct interpretation leaves no reasonable doubt (acte clair). Under Cilfit, as clarified in Consorzio Italian Management, that assessment must take account of EU law’s particular terminology, context, objectives and multilingual character, and the risk of divergent decisions. The court must be satisfied that the answer would be equally obvious to other Member States’ final courts and the Court of Justice, and give reasons for not referring. National courts may reject an unfounded challenge to an EU act’s validity, but cannot themselves declare the act invalid; a reference is required if they consider the validity objections well founded.^[23]

The second stage involves the preliminary decision itself. The competent EU court will examine the question and issue its ruling – acting with the minimum of delay where the case concerns a person in custody, as noted in the Article. Article 275 TFEU limits jurisdiction in common foreign and security policy matters, but does not impose a blanket exclusion. In particular, Rosneft confirms preliminary-ruling jurisdiction to review compliance with Article 40 TEU and the legality of restrictive measures against natural or legal persons. The jurisdictional exclusion is interpreted narrowly; KS and KD confirms that acts or omissions not directly related to political or strategic choices in that policy are not excluded merely because they occur in that context.^[24]

The third and final stage of the process is the implementation of the clarified law. Whilst the EU court clarifies the law, it does not decide the national dispute. Its ruling binds the referring court, which must apply it to the case – for example, in the Factortame^[10] cases legal discussion moved from a domestic setting in the (then) House of Lords, up to the ECJ for clarification, and then back to the House of Lords for the implementation of the ECJ’s decision.

Article 45 TFEU

Overview

The role of the worker (and the legal protection of the worker) has changed significantly since the conception of the European Economic Community. Whilst previously the free movement of workers was seen merely as a means to enable workers to move to fill any labour shortages within the EU, the law of the EU has now evolved into a complex system, protecting the right of EU citizens to pursue employment across the Union.^[11] The free movement of workers can also be linked to the EU’s origins in the wake of WWII, with the emphasis on free movement of workers fulfilling the desire of the EU’s founders to maximise economic integration as a means of disincentivising violent conflict.^[12]

To this end, Article 45 of the TFEU lays out the legal protection that workers receive from the EU when pursuing employment in other Member States. Its predecessors were Article 48 EEC/EC and Article 39 EC; Article 267 was formerly Article 177 EEC/EC and then Article 234 EC.

Article 45

Article 45 is split into four subsections, detailing the extent of the right to freedom of movement for workers. Each subsection has received significant examination and refinement over the years, as a result of both ECJ rulings and secondary EU legislation.

Subsection 1 notes the freedom itself. It is notable that the definition of a ‘worker’ has been refined by the ECJ. In particular, the ECJ has stated the term is defined by Union law, rather than domestic law (in Hoekstra v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten^[13]), in order to avoid the confusion that would be caused by a multitude of domestic definitions. A worker provides services for and under another’s direction in return for remuneration (Lawrie-Blum). The activity must be genuine and effective rather than merely marginal and ancillary; part-time work or low pay does not by itself exclude worker status (Levin).^[25] Whilst this subsection says little of how the right is to be implemented, Article 46 of the TFEU provides the basis for secondary legislation, enabling Article 45 to take full force.^[14]

Subsection 2 notes that this freedom must be protected through the abolition of nationality-based discrimination between workers who are nationals of the Member States. This subsection can be read as an extension of the anti-discrimination principle laid out in Article 18 of the TFEU, although the definition of what constitutes discrimination has been clarified in case law. The ECJ has specifically noted, in Allué and Coonan v Università degli studi di Venezia^[15], that the prohibition covers indirect as well as direct nationality discrimination. Limits on foreign-language assistants’ contracts, which predominantly affected nationals of other Member States and were not imposed on other workers, could not be justified by the reasons advanced. Regulation 492/2011 also guarantees migrant workers equal treatment in social and tax advantages.

Article 45 is directly effective and its nationality-discrimination prohibition also binds private employers (Angonese). It can also prohibit unjustified obstacles to cross-border employment even where a rule applies without distinction as to nationality (Bosman); a restriction must satisfy the applicable justification and proportionality requirements.^[26]

Subsection 3 notes specifically that in addition to the right to free movement, workers have the right to accept offers of employment, move to the State within which the employment is available, stay in that State and, notably, to stay in that State post-employment, given certain conditions are met. Whilst originally referring, largely, to a worker’s right to remain in retirement^[16], Directive 2004/38 provides a list of situations in which the right to remain operates, including retention of worker status during temporary illness or accident, qualifying involuntary unemployment and certain vocational training under Article 7(3). Registration as a jobseeker is required for the unemployment categories; where Article 7(3)(c) applies after a short fixed-term contract or involuntary unemployment during the first twelve months, retained status lasts at least six months. Articles 16 and 17 separately provide for permanent residence, generally after five years’ continuous lawful residence or earlier for qualifying retirement, permanent incapacity and certain frontier workers. Not only does Article 45 confer rights upon the individual worker, but their family as well.^[17] In essence, qualifying family members possess the right to accompany or join that worker under Directive 2004/38, irrespective of their nationality. They include a spouse, a registered partner where the host State treats the partnership as equivalent to marriage, direct descendants under 21 or dependent, and dependent direct ascendants, including those of the spouse or qualifying partner. Article 3(2) requires facilitation of entry and residence for certain other relatives and duly attested durable partners. It is also of note that individuals also possess a right to temporarily relocate to another Member State for the purposes of seeking work (as confirmed in Procureur du Roi v Royer).^[18] Jobseekers must be allowed a reasonable period to seek work; during that period they may be required to show that they are looking for work, but a genuine chance of engagement need only be demonstrated once that period has expired. Those continuing to seek work with a genuine chance of engagement cannot then be expelled merely for remaining unemployed (G.M.A., C-710/19).^[27]

The rights in Article 45(3) are subject to justified public-policy, public-security and public-health limitations. Under Directive 2004/38, public-policy and security restrictions must be proportionate and based on personal conduct representing a genuine, present and sufficiently serious threat to a fundamental interest of society; previous convictions alone are insufficient. Articles 28 and 29 provide further safeguards against expulsion and limit public-health restrictions.^[28]

Finally, subsection 4 notes that there is an exception to the Article in cases involving public service employment. Further clarification on the definition of public service has been provided by the ECJ. In Commission v Belgium^[19] the scope of Article 45(4) was limited to posts involving direct or indirect participation in the exercise of powers conferred by public law and responsibility for safeguarding the general interests of the State or other public authorities (such as certain posts within the security services). Indeed, this is confirmed by Lawrie-Blum v Land Baden-Württemberg,^[20] in which it was confirmed that the public-service exception did not cover the trainee teaching post, even though it was in the employ of the State. The nature of the post’s duties, rather than public employment alone, is decisive; the exception is not confined to national security. Once a worker from another Member State is admitted to public employment, Article 45(4) does not justify discrimination in pay or other working conditions.^[21]

Whilst the above applies to those seeking to move between States for work, Article 45 does not apply to wholly internal situations with no relevant link to EU law. For example, in Morson and Jhanjan v Netherlands^[22] the claimants were Surinamese mothers seeking residence with their Dutch children, who worked in the Netherlands and had never exercised free movement. They could not rely on the Community worker-family rules. It is, therefore, necessary for there to be a relevant cross-border link, which can also arise where a national returns after exercising free movement. This does not exclude separate EU citizenship rights in exceptional cases where refusing a family member residence would, because of a relationship of dependency, force a Union citizen to leave the Union as a whole (Ruiz Zambrano).^[29]

2026 update

For requests submitted from 1 October 2024, the General Court has preliminary-ruling jurisdiction in six specified areas: VAT, excise duties, the Customs Code, tariff classification of goods, passenger compensation and assistance, and greenhouse-gas emission allowance trading. All requests must still be sent to the Court of Justice. It transfers requests falling exclusively within one or more of those areas, but retains those raising independent questions about primary law, public international law, general principles of EU law or the Charter. General Court preliminary rulings have the same scope as Court of Justice rulings, subject to an exceptional review procedure where the unity or consistency of EU law is at serious risk.^[30]

Following Brexit, UK courts generally cannot make new Article 267 references. However, Article 158 of the Withdrawal Agreement permits references about Part Two citizens’ rights where the case began at first instance within eight years after the transition period ended on 31 December 2020. For cases concerning decisions on applications under Article 18(1) or (4), or Article 19, the eight-year period instead runs from the date Article 19 applied. References also remain possible under Article 160 for specified financial provisions and under Article 12(4) of the Windsor Framework for the EU rules within its scope. These exceptions are not confined to cases arising during the transition period.^[31]

The general EU free-movement regime no longer applies to movement between the UK and the EU after the transition period. However, Article 24 of the Withdrawal Agreement preserves Article 45 rights and Regulation 492/2011 rights for workers and frontier workers within the Agreement’s personal scope, subject to its conditions. These rights have effect in UK law through section 7A of the European Union (Withdrawal) Act 2018. Historical cases remain governed by the applicable law and transitional provisions.^[32]

Last updated: 11 November 2026

Bibliography

Legislation

Treaty on the Functioning of the European Union

European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

Cases

Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Germany and R v Secretary of State for Transport, ex p Factortame (‘Factortame III’) [1996] ECR I-1029; R v Secretary of State for Transport, ex p Factortame (No 5) [1999] 3 WLR 1062 (HL)

Case 33/88 Allué and Coonan v Università degli studi di Venezia [1989] ECR 1591; Joined Cases C-259/91, C-331/91 and C-332/91 Allué and Others [1993] ECR I-4309

C-149/79 Commission v Belgium [1982] ECR 1845

C-188/91 Deutsche Shell AG v Hauptzollamt Hamburg [1993] ECR I-363

C-322/88 Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4407, 4408

C-75/63 Hoekstra (née Unger)  v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] ECR 177

C-343/90 Lourenço Dias (Manuel José) v Director da Alfândega do Porto [1992] ECR I-4673, I-4675

C-66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121

C-35/82, C-36/82 Morson and Jhanjan v Netherlands [1982] ECR 3723

C-102/81 Nordsee v Reederei Mond [1982] ECR 1095

C-48/75 Procureur du Roi v Royer [1976] ECR 497

C-166/73 Rheinmühlen-Düsseldorf [1974] ECR 33

Books

Berry E, Homewood MJ, Bogusz B, Complete EU Law: Text, Cases, and Materials (OUP, 2013)

Fairhurst J, Law of the European Union (Pearson, 2012)

Journal Articles

Garrett G, Kelemen RD, Schulz H, ‘The European Court of Justice, National Governments, and Legal Integration in the European Union’ (1998) 52 International Organization 149-176

Other

Sodha S, ‘Why is EU free movement so important?’ (BBC, 27 July 2015) Available at http://www.bbc.co.uk/news/world-europe-33655318 [Accessed 11/02/2016]