• In Joined Cases C-151/04 & C-152/04 Nadia [2005] it was decided by the Court of Justice of the European Union (CJEU) that an individual is a worker for the purposes of Article 45 Treaty on the functioning of the European Union (TFEU) if they perform services for an individual, who he is under the direction of, for which he receives remuneration for, for a certain period of time.

Facts of the case:

  • Nadin (N) lived in Belgium, and was a citizen there, but he worked in Luxembourg, and thus crossed the border each day.
  • The car he used was registered in Luxembourg and belonged to the company of which he was the managing director.
  • Under Belgian law, company vehicles that are used within Belgium but which are registered in other Member States need not be registered, provided that the individual is not self-employed by virtue of his managerial position at the company of which the vehicle is registered.
  • Therefore, he was acting in contravention to the Belgian national law in using this car in Belgium each day.
  • N argued that the national Belgian law was contrary to Article 45 TFEU and Article 49 TFEU, and a preliminary reference was made on this ground.

Issues in Joined Cases C-151/04 & C-152/04 Nadia [2005]

  • Whether the Belgian law, requiring that company vehicles which are registered in other Member States are not being operated by individuals self employed as a result of their managerial position is in contravention of Article 45 TFEU and Article 49 TFEU, which relates to the free movement of workers and freedom of establishment respectively.

CJEU held:

  • The CJEU stated that the Belgian law in question does not fall within the remit of Article 45 TFEU, but does fall within the scope of Article 49 TFEU. Article 45 did not apply because a ‘worker’ involved carrying out work for remuneration for another individual. Because the law applied to self-employed individuals by virtue of their position, by definition, this could not apply to Article 45 which dealt with workers.

Then CJEU specifically stated:

  • [31] “Since the essential characteristic of an employment relationship within the meaning of Article 39 EC is the fact that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration, any activity which a person performs outside a relationship of subordination must be classified as an activity pursued in a self-employed capacity for the purposes of Article 43 EC” [I-11229]
  • [32] “It is not for the Court of Justice to establish whether or not there exists a relationship of subordination in the disputes in the main proceedings.” [I-11229]
  • [I-11235] “It is contrary to Article 43 EC for the domestic legislation of one Member State, such as the legislation at issue in the cases in the main proceedings, to require a self-employed worker residing in that Member State to register there a company vehicle made available to him by the company for which he works, established in another Member State, when it is not intended that that vehicle should be used essentially in the first Member State on a permanent basis and it is not, in fact, used in that manner.”