The Concept of ‘Worker’ in the Free Movement of Workers and the Social Policy Directives: Perspectives from the Case Law of the Court of Justice

Introduction

The Concept of worker is the gateway to the access to the protection of labour and social security law. Originally, European Community Law did not have much concern in this area, as it was seen as a sensitive issue and a prerogative of the Member States. If there were labour and social security law dispositions within the Treaty of Rome, they did not provide legally enforceable rights. The European construction was - and still is to some extent - focused on economic goals, notably the establishment of the internal market. ¹

Ironically, it is through the window of the internal market and its freedoms that social policy concerns made their entry into European Law. It is in the field of the free movement of workers (current Article 45 of the TFEU) that the Court first needed to develop a specific, autonomous, Community-wide concept of worker, through a process which culminated with a first definition of the concept in the Lawrie-Blum case. Despite the fact that in the meantime a more comprehensive freedom of movement was developed and extended towards Union citizens in general, the case law concerning the freedom of movement of workers remains pertinent, as this category of persons and their family members still enjoy a stronger protection. ²

Alongside the field of free movement of workers, new provisions were included in the Treaties allowing the European legislator to adopt secondary law in specific areas of social policy (which remains in principle a competence for the Member States). For instance, current Article 153 of the TFEU provides a legal basis for intervention of the European Union legislator regarding, among others, the improvement of working conditions or the protection of the health and safety of workers. A definition of the concept of worker in order to determine the scope of the Directives adopted on those bases was quickly needed. Some Directives referred back to the national definitions, sticking close to the idea that social law should remain in the hands of Member States. Some Directives did not include any definition and only one (as we will see later) refers to a (very wide) concept of worker. It was the job of the Court to deal with the things left unsaid by the legislator.

The aim of our short study is to compare the concepts of worker in the area of the free movement of workers and in the Social Policy Directives, in order to ascertain to what extent they can differ, and to try to explain the rationale behind the decisions of the Court. Indeed, if what the Court kept saying since the Martinez-Sala case of 1998 ³ had to be followed, the conclusion would be that there is no single definition of worker in European Law and that this concept may vary depending on the context. As we will see in the following sections, this affirmation must be much more nuanced, as the Court regularly extended its Lawrie-Blum case law to cases related to Social Protection Directives. ⁴ Scholars are divided on the question, some claiming that there is no longer a distinction between the concepts of workers in the Court case law, ⁵ while others maintain that the findings of the Court in Martinez-Sala must still be considered as relevant. ⁶ We will come back to this ongoing debate at the end of this contribution, and briefly address the question of the future evolution of the concept of worker in EU Law, with due consideration, among others, to the recent Directives on Transparent and Predictable Working Conditions (2019/1152) and on Work-Life Balance (2019/1158).

Concerning the methodology used, it was decided to lead an in-depth analysis of the existing case law of the Court on the concept of worker in the field of free movement of workers on one hand and in the field of the Social Policy Directives on the other hand. It is assumed that the Court is a rational actor and that the differences between the outcomes of its decisions are not random. The decisions will be presented in three separate sections. Section 1 is dedicated to free movement law, while Section 2 deals with the Social Policy Directives. These are divided into two groups, depending on whether the Court had the possibility to elaborate a ‘Community concept of worker’ or not, in the case where the Directive refers back to the national concept of worker. To facilitate the comparison, the analysis will focus on the three elements of the Lawrie-Blum formula, namely work, remuneration and the link of subordination.

The concept of worker in free movement law: Lawrie-Blum and its aftermath

The free movement of workers provided by Article 45 TFEU is one of the fundamental freedoms which are necessary for the good functioning of the internal market. In this context, it is logical that the Court would not let the concept of worker, which is the key to the protection offered by this Article by determining its scope of application, be defined by the Member States. This concern arose as early as the Unger case in 1964, ⁷ where the Court stated for the first time that the concept of worker in the field of free movement must have an autonomous meaning.

However, it was only in the late 1980s that the Court attempted to define the concept of worker for the first time. In the Levin ⁸ and Kempf decisions, ⁹ it ruled that part-time workers had to be considered as workers in the sense of Article 45 TFEU, despite the fact that the income they receive is insufficient for subsistence, provided that the persons in question undertake a genuine and effective activity. In the Lawrie-Blum case, the Court explained that an essential feature of the employment relationship was the fact that ‘for a certain period of time, a person provides services for and under the direction of another person in return for which he receives remuneration’. ¹⁰

In the subsequent case law, the Court retained three criteria in order to identify a worker: work; remuneration; and the most important from a social law perspective, the link of subordination.

Concerning the work criterion, the analysis of the case law reveals several tendencies. One major issue, frequently at stake, relates to the question of public servants. Indeed, Article 45 (4) of the TFEU excludes employment in the public service from its scope of application. This concept receives a uniform interpretation and requires a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality, linked to the exercise of powers conferred by public law and duties designed to safeguard the general interest of the State, which receives a restrictive interpretation. ¹¹ Another concern is the one of genuine and effective activity which requires a global analysis, based on objective criteria. ¹² Following the Bettray case, ¹³ this activity must be an economic activity, and not merely a means of rehabilitation or reintegration adapted specifically to the capacities of the person employed in order to get them back into ‘normal’ employment, like an activity specifically designed for a drug addict. In the later Trojani ¹⁴ case, the Court did not exclude per se a reintegration programme of the Salvation Army and left the question to the referring judge. Other examples are the cases of professional sportspeople, ¹⁵ trainees ¹⁶ and PhD students, ¹⁷ where the Court admitted that such economic activity existed. Thirdly, diverging from the traditional views of national labour law, Article 45 (3) of the TFEU provides that a worker may retain this quality after the end of the employment relationship and still benefit from the free movement of workers, a right which is fleshed out by Regulation No 1612/68. It was left up to the Court to determine how far this extension goes. For instance, if the worker loses her job and intend to undertake studies at a university, such studies must lead to a professional qualification directly linked to the previous job. ¹⁸ Such a link with a previous activity is not, however, required if the migrant worker who begins such studies became involuntarily unemployed beforehand. ¹⁹ This does not mean a person can move to another country, exercise a professional activity there for only a short period of time, then undertake studies with the sole intention to benefit from the protection. ²⁰ A woman who ceases her activities or stops searching for employment because of her pregnancy can also still be considered as a worker as the free movement of workers is deemed fundamental and must be interpreted broadly. ²¹ Expansive interpretation is not limitless. In the Brian Francis Collins case, an Irish-American binational was refused the qualification of a worker and the right to stay in the United Kingdom. His claim was only based on the fact that he had worked on a part-time basis for a short time years before, in the context of an activity which had absolutely no link with his current presence in the country. ²²

Concerning the question of remuneration, the case law analysed shows that the Court is not willing to make it an obstacle to the claiming of the quality of worker and accepts several scenarios which do not follow the ‘normal’ pattern where the employer pays a salary in the form of a sum of money to a worker. ²³ For example, the source of the remuneration does not seem to matter. Thus, in the aforementioned Bettray case, the fact that the remuneration was essentially subsidised by public funds and not by the employer was not problematic for the Court. ²⁴ The limited character of the remuneration does not have any consequences whatsoever. ²⁵ The nature of the remuneration itself may vary, and the Court recognised, in the Steymann case, that services and benefits in kind provided by a religious community to one of its members in exchange for his work had to be considered as equivalent to a salary. ²⁶

The Court does not usually focus as much attention on the link of subordination criterion as to the other Lawrie-Blum criteria in the field of free movement. Analysing the Bettray case, Emanuele Menegatti explains this by the fact that the Court focuses more on the smooth functioning of the internal market and the development of the economic freedoms than on the protection of the workers. When the free movement of workers is not available, it is perfectly possible to fall back on the other freedoms. ²⁷ However, there are still interesting cases to mention. In the Asscher case, ²⁸ the question arose as to whether someone, who was considered as a self-employed person under national fiscal law, could be qualified as a worker under free movement law and therefore benefit from this protection in order to rebut proceedings brought against him. The person in question was the Director of a Dutch company, where he was also the only shareholder, and of a Belgian one. The Court concluded by application of the Lawrie-Blum formula that there was no link of subordination. ²⁹ In the Jany, Van der Steen and Zako cases, ³⁰ the Court decided to stretch the concept of subordination by including elements which are considered as falling outside it, such as, among other things, the question of participation to the risks or economic dependency. ³¹ However, these cases deal with exceptional circumstances within the field of free movement, so that the application of a generalisation of the reasoning of the Court to the whole field would probably be excessive.

The concept of worker in Social Policy Directives:

In secondary law, more precisely in Social Policy Directives, the concept of worker is widely used but rarely defined. Most simply refer back to the national definition of the concept, while some others do not contain any indication about the definition which should be used. Only the Occupational Safety and Health Framework Directive contains a quite broad and not very precise definition of a worker. The worker is ‘any person employed by an employer, including trainees and apprentices but excluding domestic servants’. ³²

The purpose of the following section is to first study the situation where a given Directive does not contain any indication of a definition of worker, leading the Court to find an autonomous concept of worker. The relevant case law will be analysed to find out what kind of definition is used and to what extent it is comparable to the Court’s definition in the Lawrie-Blum case law. The focus will then shift to Directives where the definition of worker is left to the Member State.

Social Policy Directives for which the court does not refer to a ‘Community concept’ of worker: Carte blanche for Member States?

There are not as many cases under this section than under the previous one. As such, they are often more interesting on an individual basis, which justifies us taking more time to study some of them.

The Court has fully embraced the Lawrie-Blum formula in every case relating to Social Policy Directives which do not contain any definition of worker, establishing clearly the existence of a European concept of worker in the areas covered by these Directives. However, the Court showed more self-restraint when dealing with cases concerning Directives which referred back to the national definition of worker.

The Court introduced this line of reasoning in the Danmols case, ⁴⁹ leading Nicola Kountouris to use the expression ‘Danmols orthodoxy’ to refer to this position. The Court decided that if a Directive sought only a partial harmonisation, it was not possible to introduce a Community concept similar to that developed in the area of the free movement of workers. ⁵⁰

Therefore, in the case of the Transfer of Undertakings Directive, ⁵¹ which cemented the teachings of the Danmols case, ⁵² the Court repeatedly refused to decide on the national concept of worker used for the scope of application of the Directive, even in situations where it led to workers being treated differently. For example, if the law of the Member State in question does not qualify public servants as workers for the application of the Directive, then, the Court will conclude that their exclusion from the scope of a given Directive is valid under European law. This was the case in the Collino and Chiappero decision, despite the argument of the Commission according to which these people did exercise analogous functions to the ones which could be exercised in the private sector. ⁵³

The CGT case ⁵⁴ concerned both the Directive ⁵⁵ on the information and consultation of employees and the Collective Redundancies Directive. The former does refer to the national concept of worker. French law excludes some categories of workers from the calculation of the threshold for the application of the Directives. If the Court did find, at the end of the day, that legislation such as the legislation in question breached EU Law, it did not discuss the definition of a worker. The Court emphasised the fact that the Directive on consultation and information refers back to national law, and that there is no problem here as French law considers these excluded persons as workers. The Court followed and held that if they are regarded as workers under French Law, then they have to be included for the calculation of the threshold. At this point of the study, the ‘Danmols orthodoxy’ has not yet been brought into question.

Therefore, a person could be in a rather uncomfortable situation where, regarding EU law, she will be considered as a worker under free movement law and the Social Policy Directives where a Community concept of worker has been cemented, but not under some Directives which refer back to the national definitions. Recently, the Court has begun to put in place safeguards for certain Directives despite the ‘Danmols orthodoxy’.

This new trend was foreshadowed in the conclusions of Advocate-General Poiares Maduro in the Del Cerro Alonso, ⁵⁶ a case linked to the Fixed-Term Work Directive. ⁵⁷ There, he proposed to introduce a concept of ‘conditional renvoi’ to stay ‘faithful to both spirit and letter of the Community legislation’. If there is an employment relationship between the public servant and the authorities which is not substantially different from the one involving a regular employee who is considered as a worker by a Member State, then this Member State cannot exclude these public servants from falling within the concept of worker. Doing so would lead to a breach of the internal logic of national law itself. ⁵⁸ In the aforementioned case, the Court ruled that the person in question was a worker. Therefore, since the Directive implements a Framework Agreement whose goal is to ensure the application of the equal treatment principle in respect of all workers, the Member State cannot exclude a worker from the scope of application as it would jeopardise the effectiveness of EU Law. ⁵⁹ The claim of faithfulness can be discussed, as this interpretation leads, to some extent, to an obligation for the Member State to interpret its own definition of a worker in a new light after the decision of the Court. ⁶⁰

Another example stems from the interpretation of the Part-Time Work Directive. ⁶¹ Following clause 2(1) of the Framework Agreement implemented by the Directive, it is up to the national law to define the concepts of employment contract and employment relationship. The Court confirmed the application of the ‘Danmols orthodoxy’ to this situation in the Wippel case. ⁶² But in the O’Brien case, ⁶³ the Court had the occasion to apply some limitations. Under the law of the United Kingdom, judges are considered as ‘office holders’ and therefore are not in an employment contract. Following the case law of the Court, a recorder, paid, on a daily basis, a fraction of the pay of a full-time judge, but who is denied the right to a retirement pension, should normally not benefit from the provisions of the Directive.

Nevertheless, the Court added that the United Kingdom must respect, in defining its concept of employment contract, both the effectiveness of the Directive and general principles of Union Law. ⁶⁴ In order to check if the British exclusion does not breach EU Law, it must be verified whether a substantial difference exists between the situation of the judge and the situation of any ‘normal’ worker. The Court left this matter to the referring court but provided some indicators to help it to carry out this test. It referred to the opinion of the Advocate-General which explained that the distinction between employees and self-employed workers must be taken into account. A classic element relating to the establishment of a link of subordination is the question of the organisation of the work. The way in which the judges are nominated and removed, and their access to sick pay, maternity or paternity pay and other benefits must also be taken into consideration. The question of the independence of the judge in their decision-making duties, according the Court, is not relevant. ⁶⁵

The reasoning of the Court in this decision ended with an answer to the argument that judges could not be seen as workers under the Framework Agreement as they are not workers under the meaning of the free movement rules, as Article 51 of the TFEU excludes the application of these free movement rules to the public servants exercising public authority. The Court concluded that this did not matter because the Framework Agreement and free movement rules did not concern the same thing. ⁶⁶ To us, the message of the Court is clear: these are two different topics which need different concepts of workers.

Another case worth mentioning is the Betriebsrat der Ruhrlandklinik ⁶⁷ case in the context of the Temporary Agency Work Directive. ⁶⁸ Article 3, 1) a) of the Directive provides that it is up to the Member States to define the concept of worker.

The case concerned an hospital which had recourse to an association of nurses (the German Red Cross) thanks to an association agreement, in order to supply staff that the hospital needed. To fully understand the issues at stake, we must clarify the functioning of the Red Cross. If the members of this association are working in another institution as in this case, they are subject to the ‘functional and organisational instructions of the institution in question’ while still paid by the Red Cross, which gets a financial compensation from the institution in return. One big point is that there is no employment contract between the Red Cross and its members, only a ‘relationship of personal dependency’ based on their obligations arising from their membership. ⁶⁹

The work council of the hospital argued that this situation fell under the German Law on the supply of temporary staff, which was therefore breached as the supply was not temporary. ⁷⁰ The problem lies in the fact that this statute only applies to temporary work agencies. The referring court felt uneasy about the qualification of the relationship between the nurses and the Red Cross.

The Court recognised that the Member States are competent to define the concept of worker under the Directive. However, the Court immediately moved away from this assumption and recalled its traditional definition stemming from Lawrie-Blum and the Danosa case, where it decided that the national form and nature of the relationship were not relevant to the qualification of a worker. It is difficult to introduce more antagonistic statements in only a couple of paragraphs. Even if the aim of the Directive is not to harmonise this definition, this does not mean that the Member States enjoy a limitless margin of manoeuvre. Interestingly, the Court explained its choice by referring to the objectives pursued by the Directive: the protection of temporary agency workers by enforcing the principles of non-discrimination, transparency and proportionality. If the Member State’s legislation is too restrictive, there is a risk that these objectives will not be met by excluding categories of persons. The Court went further by highlighting the fact that in its relationship with the Red Cross, a nurse enjoys several rights which are identical to those from which a worker would benefit under German Law. ⁷¹ Even if the Court left it to the referring judge to qualify the relationship, it seems clear that it is in favour of concluding that a relationship of work exists. As in the O’Brien case, the main elements to be taken into account by the national judge according to the Court are not necessarily directly linked to the question of the existence of a link of subordination, but to the benefits that the persons draw from the relationship. ⁷²

Emmanuele Menegatti affirms in his contribution that the Court has adopted a new approach towards all Directives aimed at the protection of the employees. ⁷³ If it can be agreed that the underlying reasoning of the Court in the cases studied is based on the will of ensuring the ‘effet utile’ of the objectives pursued by the Directives at stake, we think that the Court remains cautious on the question of extending this approach. Indeed, at the time of writing, no other cases where the Court departs from the ‘Danmols orthodoxy’ can be found. The recent Correia Moreira ⁷⁴ case decided by the Court in the field of the Transfer of Undertakings Directive, still respects the national character of the definition of a worker. If the Court admitted that a person in a position of trust might be recognised as an employee under the meaning of the Directive, it is only because it is so provided by national law. ⁷⁵ The Court strongly denied any jurisdiction on the interpretation of national law. ⁷⁶ The Court can be reluctant to generally apply recent and revolutionary line of case law to all of the Directives where there is no community concept of workers. Following Nicola Kountouris, this general application should not be accepted in the short or medium term.

We turn now to the underlying rationale behind this singular conduct of the Court in the field of the Directives. It must be remembered that if these Directives refer to the Member State definitions of the concept of worker, it is because they only aim to bring about a partial harmonisation, as the Court regularly notes, and deal with sensitive issues. This also explains the prudent approach of the Court. It cannot use the ‘functional harmonisation’ rationale highlighted by Stefano Giubboni and Massimo d’Antona, as clearly there has never been an EU-wide concept of worker for the Directives, so the Court has had to find something else. The Court does not directly oppose the Member States when there is another solution, for example if the person to be protected falls under the national definition of a worker. Frédérique Michéa ⁷⁷ explains that the approach of the Court described above consists in the interpretation of national law itself. There is no intention to replace the national concept with an EU-wide one, but to interpret it in accordance with the objectives of EU Directives and conclude that the persons concerned are indeed workers. This approach could be analysed as an overstretched version of the normal logic of the Court in those cases.

Conclusion: A common concept?

At the end of this short overview of the case law of the Court of Justice of the European Union, several conclusions can be drawn. They offer a nuanced picture on the ongoing debate concerning the concept of worker in the different fields of EU Law.

We have highlighted that only one Directive on social policy contains a proper definition of worker, which is very broad and cannot be used in the context of other Directives. For those which do not leave to the Member States the task of defining the concept of worker, the Court constantly uses its findings from the free movement case law and the three criteria elaborated and clarified in the Lawrie-Blum case and its aftermath. We showed that this move could be explained by the fact that originally, the Court sought to ensure that the Member States did not restrict the free movement of workers by treating differently some categories of workers and excluding them from the scope of application of those Directives, following a ‘functionalist harmonisation’ rationale. Therefore, in this context, we can point to the existence of a common, EU-wide concept which applies equally to both free movement and Social Policy Directives which do not refer to the national concept of worker. However, this affirmation must be nuanced. We saw in the Danosa case and those following it, that even if the Court refers systematically to the Lawrie-Blum case law, it gives more weight to the question of the link of subordination, trying to stretch it in order to include economically dependent workers in the scope of application of the Directives. We also saw the specific concern that the Court had regarding equality between men and women, which led it to move boldly, often in the face of criticism, in order to blur the distinction between the employee and self-employed worker.

For Directives which do actually refer to the national concept of worker in order to determine their scope, we observed that the Court originally stuck to the ‘Danmols orthodoxy’, with a systematic refusal to decide on the national definitions used by the Member States, a position which was explained by the fact that the Directives in question realise only a partial harmonisation, which makes the recourse to the ‘functionalist harmonisation’ rationale impossible. This way of dealing with cases still exists, especially in relation to the Transfer of Undertakings Directive. Alongside this line of case law, we saw that another approach was recently taken, in which the Court, while still recognising the competence of the Member States on the question, states that this competence is not without limitation. There are several differences in the approach of the Court regarding the first category of Directives. First, even if some references can be made to case law decided in other areas, including the Lawrie-Blum case law, the core of this mechanism of ‘conditional renvoi’ is not situated at the level of EU law, but at the national level. A common trait shared by the two lines of case law concerning the Social Policy Directives is the key role played by general principles. In the case of a ‘conditional renvoi’, these principles, like equality, are the objectives underlining the adoption of the Directives. The referring judge has to interpret the national law in a way that will not meet those objectives. From this perspective, national law is seen as self-contradictory, as it treats differently categories which are not substantially different. The Court provides guidance to the national judge to help him in this task. This includes elements which are not directly related to the link of subordination, but which consist in the benefits that the person draws from the relationship, like for example, sickness pay, maternity leave, etc.

We conclude that there is no unitary concept of worker currently existing in EU law. We can identify the wish of the Court to overcome the boundaries between the different fields of EU Law and to generally apply the Lawrie-Blum case law. At the same time, there are still specific circumstances in cases where the Court uses the mechanism of ‘conditional renvoi’ and it is unlikely that this case law will be extended to Directives which refer back to national law in the near future. The difficulties are rooted in the origins of the European construction itself, and it will be difficult to overcome them.

At this point, we would like to address the case of two recent legislative initiatives in the field of social policy, namely the Directive on Transparent and Predictable Working Conditions in the European Union ⁷⁸ and the Work-Life Balance Directive. ⁷⁹ These two Directives, adopted on the same day, ⁸⁰ have in common a specific wording on their personal scope. These provisions had a quite tumultuous genesis. Indeed, in the Commission’s original proposal, a proper definition of a worker, based on the one developed by the Court in the Lawrie-Blum case was intended. This was too ambitious for the Council, which re-drafted the text in order to refer back to the national definitions. Finally, under the pressure from the Parliament, a solution was found. ⁸¹ The Directives apply to ‘every worker in the Union who has an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State, with consideration to the case law of the Court of Justice’ (emphasis added). ⁸² In our eyes, this solution can be compared with the outcome of the evolution of the Court’s case law regarding Directives which refer back to the national concept of worker. This assumption is backed by Recital 8 of Directive 1152/2019, which states that the criteria provided by the case law should be taken into consideration in the implementation of the Directive. Several cases are then mentioned, among which are Lawrie-Blum but also Betriebsrat der Ruhrlandsklinik. It remains to be seen whether this way of drafting personal scope provisions will be used in future Social Policy Directives, and how the Court of justice will handle these provisions. We argue however, that in light of the findings of this article, these new Directives provide the Court with the opportunity to go further with the definitions of a worker in European Law, even if it does not reach a single, common concept.

But do we really need to introduce a common concept of worker, relevant for all the fields of EU law? If so, which concept should be used? Is the general application of the Lawrie-Blum concept the best option available? New challenges lie ahead: atypical work is on the rise, as evidenced in the growth of the gig economy; ⁸³ and proper protection will be needed for the workers concerned. Between employees and self-employed, ‘grey areas’ now exist where once there was a clear-cut distinction. ⁸⁴

Currently, the question of the qualification of these workers is mostly handled by Member States. We note a wide disparity in the solutions proposed. The case of platform workers is particularly eloquent of this, going from deregulation (as in Belgium) ⁸⁵ to the establishment of an intermediate category between employees and the self-employed (as in Germany or Italy). ⁸⁶ This means that a gig worker risks to be treated differently depending on the applicable (national) law. This issue was one of the main reasons behind the Commission’s proposal which led to the adoption of the Directive on Transparent and Predictable Working Conditions. Unfortunately, as we have seen, the final wording of the Directive does not refer to the atypical workers, which are only mentioned in the Recitals. ⁸⁷ We advocate for an intervention of the Court to provide a EU-wide solution to this problem, in order to provide some legal certainty. This would not be in contradiction with the conduct of the Court as we analysed it in this study, especially if we take into consideration the Court’s tendency, already highlighted by Emanuele Menegatti, to go ‘beyond the wording of the legislative text’. ⁸⁸

What kind of answer could the Court give? Like Martin Risak and Thomas Dullinger, we think that the introduction of a third category of worker would not be a solution. There is no mention of such possibility in the Court case law, and it would probably lead to more uncertainty as genuine workers in complex situations would end up less protected in the intermediate category. ⁸⁹ Risak and Dullinger, as well as Nicola Kountouris, advocate for an EU-wide concept of worker, which would take into account economic dependency alongside subordination, while Stefano Giubboni estimates that the current situation is still too fragmented and that social policy remains a poor relation of the internal market. ⁹⁰ The specifics of the Court case law in the field of Social Policy Directives could be a good starting point for dealing with these challenges. Protection is a bigger concern in this field than for the more traditional approach linked to the establishment of the internal market derived from the Lawrie-Blum line of case law in free movement law. Only time will tell whether a common concept of worker can emerge in EU law and the form it may take, through the action of the legislator or the judiciary.