Prywatny pracodawca jako adresat przepisów TWE o swobodzie przepływu pracowników.Uwagi na tle bezpośredniej horyzontalnej skuteczności art. 39 TWE

Abstract

Since the primary addressees of the Article 39 of the Treaty concerning the free movement of workers are Member States (and the Community itself), vertical direct effect may be attributed to that provision. This leaves a question open whether that provision has horizontal direct effect as well or whether the category of its addressees includes private employers (i.e. employers not connected functionally or structurally with Member States). The answer to this question is fully affirmative only in the case of private employers with regulatory powers, i.e. employers who regulate business operations covered by the objective scope of the freedom in question “in collective manner”. These employers create rules in a way that resembles issuance of (legislative) rules by the State and are not allowed to hinder in that way the free movement (not only by the discriminatory rules but also by rules having non discriminatory character). As far as other private employers (having no regulatory power) are concerned, the arguments against them being directly subject to rules on free movement of workers (especially the danger of excessive transgression of their private autonomy, which is respected by the EU and by the Member States under fundamental rights) are strongly prevailing over the arguments in favour thereof (especially the need for more effective implementation of
the internal market idea). The article argues that private employers are bound only by a certain segment (section) of the Article 39 of the Treaty, namely by the prohibition of discrimination on grounds of nationality. That segment forms part of the Article 39, but does not exhaust its full content.