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EU Law > 4 - Free Movement of Persons: Articles 20 and TFEU > Flashcards

4 - Free Movement of Persons: Articles 20 and TFEU Flashcards

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1
Q

Who are the 3 categories of persons able to exercise their rights to free movement?

A
  1. Workers
  2. Union citizens
  3. Their family members
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2
Q

What is the key article relating to the EU workers?

A
  • Article 45 TFEU
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3
Q

What does regulation 492/2011 provide?

A
  • Specific employment, social and educational rights for workers.
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4
Q

What does Directive 2004/38 provide?

A
  • Citizenship Directive

- Detailed rules re free movement of persons

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5
Q

What did Article 7A of the Single European Act 1986 aim for?

A
  • Elimination of all border controls in the EU as of 1st January 1993.
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6
Q

What are the 4 key paragraphs in Article 45 TFEU?

A
  1. Freedom of movement for workers
  2. Abolition of discrimination based on nationality
  3. Rights (limitations based on public policy/security and health)
  4. Article does not apply to employment in the public service
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7
Q

Which secondary legislation supports Article 45 TFEU?

A
  1. Regulation 492/2011 - confers rights of equal treatment (replaced Reg 1612/68)
  2. Directive 2004/38 - rights of entry and residence of Union Citizens.
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8
Q

What happened in Walgrave & Koch v Association Union Cycliste Internationale

A
  • Held: practice of sport is subject to Article 45 TFEU
  • So long that it constitutes economic activity having character of gainful employemnt
  • Held: Article 45 TFEU applied to rules of an international sporting federation
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9
Q

What was held in Hoeksta (nee Unger) v Bestuur de Bedrifj

A
  • Held: whether or not someone is a worker is not defined by national law
  • But was to be given a Union meaning
  • Makes sure that definition is consistent across MS so that free movement rules not frustrated.
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10
Q

What does Walgrave v Koch indicate in terms of who qualifies as a worker?

A
  • Person must be engaged in an economic activity having the character of gainful employment
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11
Q

What happened in Lawrie Blum v Land Baden-Wurttemberg?

A
  • Feature of employment relationship
  • Is that for a certain period of time, person performs services for and under direction of another person
  • And in return renumeration.
  • British national who went to germany to train as a teacher
  • Then refused admission to prep stage of training because she was not a german National.
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12
Q

What are the 3 essential Lawrie Blum criteria for an employment relationship to arise?

A

Individual must:
1. Perform services
2. For & under direction of another
In return for remuneration

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13
Q

Leving v Staatsecretaris van Justite?

A
  • Held: rules governing workers covers only pursuit of “effective and genuine activities”
  • Exclusion of activities on a small scale that are regarded as marginal or ancillary.
  • “worker” includes someone in part time employment providing work is not nominal or minimal.
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14
Q

Kempf v Staatsecretaris van Justite?

A
  • Held that person is still a worker
  • Even if they supplement income by recourse to social security benefits
  • Provided by the MS.
  • German music teacher who worked part time - got benefits to top up his modest earnings.
  • Held: person in effective and genuine part time employment cannot be excluded regardless of how little is earned.
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15
Q

Steymann v Staatsecretaris van Justite?

A
  • Held: person in effective and genuine part time employment cannot be excluded regardless of how little is earned.
  • German member of religious community in Netherlands who had applied for a residence permit there on the ground that he was pursuing an activity as employed person.
  • Held: CoJ said work carried out in connection with community commercial activities could amount to genuine and effective economic activity
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16
Q

Bettray v Staatsecretaris van Justite?

A
  • Much more cautious approach
  • German drug addict who was employed under legislative scheme in Netherlands
  • Meant for helping drug addicts / those who could not work under normal conditions
  • Held: CoJ said he was not engaged in effective + genuine economic activity.
  • Just because the work was a means of rehabilitation / reintegration - primary purpose was to enable him to take up ordinary employment.
  • Controversial
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17
Q

What does article 45(3)(a) TFEU cover?

A
  • The right to accept offers to employment
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18
Q

Trojani v Centre Public D’Aide Sociale de Bruxelles (CPAS)

A
  • Treated Bettray facts as specific to that case.
  • Trojani was in a personal socio occupational reintegration programme in Belgium.
  • Given accomodation in Salvian army for board + lodging.
  • This was held to satisfy Lawrie Blum test
  • But was left to courts to decide if this was effective and genuine economic activity.
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19
Q

What does article 45(3)(d) TFEU cover?

A
  • Right to remain in territory of MS after having been employed in that state subject to conditions embodied in regulations drawn up by the Commission.
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20
Q

What happened in Hoekstra?

A
  • Right to remain in territory of MS after having been employed in that state
  • Protects a person who has left his job and is capable of taking another.
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21
Q

What happened in the case of Procureur du Roi v Royer?

A
  • Scope of article 45 was extended even further.

- Confers a right on nationals of MS to enter and reside in territory of another MS in order to look for work.

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22
Q

R v Immigration Appeal Tribunal ex p Antonissen

A
  • Developed findings of Procurer du Roi v Royer more
  • This case was an order to deport Belgian national from UK
  • Entered UK for work and had not found work within the 6 month period laid down in UK law.
  • Confirmed: a45 TFEU gives the right for nationals of MS to move freely within territory of other MS and to stay there for the purpose of seeking employment.
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23
Q

What is codified in Article 14(4)(b) of Driective 2004/38?

A
  • That a MS could require a national of another MS to leave the territory of that State if he has not found employment there after 6 months
  • Unless person concerned provides evidence that he is continuing to seek employment + has genuine chances of being engaged in work.
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24
Q

What does Article 7(2) Regulation 492/2011 say?

A
  • That migrant workers have the rights to the same social and tax advantages as the nationals of the host MS that they reside in
  • This right is not available to job seekers
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25
Q

What does Article 20(1)TFEU say about Union Citizenship?

A
  • That everyone holding Nationality of MS shall be a citizen of the Union.
  • Citizenship of Union cannot replace national citizenship.
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26
Q

What happened in the case of Grzelczyk v Centre Public d’Aide Social?

A
  • Said that Union Citizenship is the fundamental status of nationals of MS.
  • Allows those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality.
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27
Q

What rights does Article 10(1) Regulation 1612/68 give to worker family members?

A
  • Right to install their spouse and their descendants who are under the age of 21 / are dependants
  • And to install dependant relatives in the ascending line of worker + his spouse.
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28
Q

What rights does Article 10(2) Regulation 1612/68 give to worker family members?

A
  • MS have a futher duty to facilitate admission of any other member of workers family who was dependant on worker or living under his roof in the country that he came from
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29
Q

What happened in the case of Netherlands State v Reed?

A
  • Application of regulation to unmarried cohabiting couples
  • British woman living with British partner in Netherlands
  • Was refused residence permit
  • Held: “spouse” is just for someone who is married to the worker.
  • However Reed could rely on Article 7(2) Regulation instead - workers get same social + tax advantages as national workers.
  • Held that being able to live with partner is an advantage that should be available to other members of MS.
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30
Q

How does Article 2(2) Directive define a family member?

A
  1. Spouse
  2. Registered partnership
  3. Direct descendants under age of 21
  4. Dependants in ascending line and those of the spouse.
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31
Q

What are the 6 MS that do not recgonise registered partnerships at all?

A
  1. Bulgaria
  2. Latvia
  3. Lithuania
  4. Poland
  5. Romania
  6. Slovakia
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32
Q

How was a “dependant” defined in Jia v Migration?

A
  • Someone who needs the material support of the Union Citizen to meet their essential needs
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33
Q

What does Article 3 of Directive 2004/38 say about further beneficiaries?

A
  • Someone who needs material support from the Union citizen (Jia)
  • Partner with whom the Union citizen has a durable relationship - covers unmarried cohabiting partners
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34
Q

What do Articles 4 and 5 respectively say?

A
  • Union citizens can leave the home of MS and enter host MS simply on production of a valid passport or ID card.
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35
Q

What happened in Diatta v Land Berlin?

A
  • Union citizens and family members who are accompanying or joining them may reside for period of up to 3 months without any other conditions
  • Other than holding a valid passport or ID card (Article 6)
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36
Q

What is right of residence over 3 months governed by ?

A
  • Article 7
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37
Q

When can the right to residence for job seekers be retained?

A
  • Cannot be expelled
  • As long as union citizen entered MS to seek employment
  • As they can provide evidence that he or she is continuing to seek employment / has genuine chance of being engaged (14(4)(b))
  • This codifies CoJ decision in AntoNissen case.
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38
Q

When can the right to residence for the unemployed be retained?

A
  • Article 7(3)
  • Union citizen who WAS a worker
  • To retain that status where they are temporarily unable to work as result of illness/ accident
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39
Q

Where are the precise conditions of unemployed persons rights found?

A
  • Article 7(3) of Directive 2004/38
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40
Q

What are the rules re Separation? Where is this found?

A
  • No effect as long as marriage has not been dissolved.
  • Follows from Diatta v Land Berlin
  • Sengalese lady who was in process of divorcing French husband
  • Held: marriage had not yet been dissolved so she had the right to continue to reside in Germany.
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41
Q

What are the rules re Divorce? Where is this found?

A
  • Decision in Diatta suggested that right to reside lost once marriage has dissolved.
  • Article 13 = provides for retention of the right residence by specified family members
  • Article 13(2) lists retention of right of residence by family members who are 3rd country nationals in 4 circumstances.
42
Q

What are the rules re Death or departure of Union citizen? Where is this found?

A
  • Article 12

- This is subject to conditions.

43
Q

What are the 4 circumstances under Article 13(2) which allow retention of residence?

A
  1. Where marriage had lasted 3 years before termination proceedings
  2. Where they have custody of the children
  3. Domestic violence / difficult circumstances
  4. Court ordered access to a minor in the host state.
44
Q

Which chapter and directive provides the right of permanent residence?

A
  • Chapter IV of Directive 2004/38
45
Q

What does Article 16 of the directive provide?

A
  • Provides union citizens and family members with the right of permanent residence
  • Where they have legally resided in the host MS for 5 year period
46
Q

What does Article 17 TFEU provide?

A
  • Workers / self employed persons to have right of permenant residence before completion of 5 years of residence
  • Once they have retired
  • They have stopped working as a result of permanent incapacity to work
  • Or having worked in host MS for 3 years.
47
Q

What does Article 45(2) provide?

A
  • Free movement of workers
  • Entails the abolition of any discrimination based on nationality
  • Between workers of the MS as regards employment, remuneration + other conditions of work and employment.
48
Q

What does Article 45(3)(a) provide?

A
  • The freedom entails the right to “accept offers of employment actually made”
49
Q

When does direct discrimination arise? Give a case example.

A
  • Where workers from other MS are overtly treated less favourably than nationals of host MS.
  • Commission v France (French Merchant Seamen)
    • French ministerial order - imposed ration of 3 French : 1 Foreign national on ships
    • Reserved certain positions only for the French.
  • Breached A45 TFEU and Article 4 Regulation 492/2011
50
Q

When does indirect discrimination arise? Give a case example.

A
  • Rule relating to employment is neutral in terms of nationality
  • But in practice affects non-national workers more severely than nationals.
  • Example: Wurttembergische AG v Ugliola
  • Italian who interrupted his employment in Germany to do compulsory Italian military service.
  • Wanted this time to be taken into account in working out his seniority.
  • Held: not doing so breached Article 45 TFEU because it indirectly discriminated against workers from other MS who did military service in their country of origin.
51
Q

Give a case example of when indirect discrimination has been justified? On what grounds was it justified?

A
  • Objective public interest grounds
  • Sotgiu v Deutsche Bundepost
  • German workers got a “separation allowance” when they were employed away from home
  • This was a higher price when their place of residence was inside Germany and lower when this was abroad.
  • Held: in this case, payments made to workers who were resident in Germany were temporary as they were required to move to their place of employment. Those who were from abroad were not required to move so their allowance was expected to continue indefinitely.
52
Q

Which article of which regulation gives grounds for justifying discrimination?

A
  • Article 3(1) of Regulation 492/2011.
  • Prohibits discrimination by MS in respect of applications and employment offers
  • Qualifies the prohibition by adding that it will not apply conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.
  • Applied by Groener v Ministry for Education
53
Q

What happened in Groener v Ministry for Education?

A
  • Operation of Article 3(1) Regulation 492/2011
  • Groener = Dutch National as a part time lecturer in art collage in Ireland.
  • Applied for permenant full time position which would be only taught in English - she did not have certificate of proficiency in Irish
  • Held: language conditions was required by reason of the nature of the post to be filled because it formed part of policy of promoting Irish Gaelic.
54
Q

What happened in Kraus v Land Baden-Wurttemberg?

A
  • Prohibits measures which impede access to employment market without being directly / indirectly discriminatory.
  • Case brought by German LLM Uni of Edinburgh student
  • Refused to make formal application for authorisation to use academic title in Germany which was required by German law.
  • Held: German measure COULD be justified by the need to prevent misleading use of academic titles as long as this was proportionate.
55
Q

What happened in the case of Union Royal Belge des Societies Football Association ASBL v Bosman?

A
  • Bosman = was a Belgian Footballer
  • Contract expired in his Belgian club, wanted to transfer to French club.
  • Her own club would not release him without payment of transfer fee by the French club.
  • Held: this rule of having to give a transfer fee could directly affect players access to the employment market in other MS + were therefore capable of impeding the freedom of movement for workers.
  • Therefore this constituted obstacle to freedom of movement for workers prohibited by Article 45.
56
Q

What does Gul v Dusseldorf find?

A
  • Family member using their right to work under Article 23 or Directive 2004/38 should also be able to benefit from other rights governing eligibility for employment
  • Turkish Cypriot Dr living in Germany with his British wife. Wife as a hairdresser.
  • Given temporary authorisation to practice medicine but application to review this was refused. He was entitled to rely on Article 3(1) Regulation 492/2011.
57
Q

What does Article 7(2) say re Social Advantages? And of which Regulation?

A
  • Article 7(2) Regulation 492/2011

- Provides that worker who is a national of a MS shall enjoy the same social and tax advantages as national workers.

58
Q

What was held in Collins v Secretary of State for Work and Pensions?

A
  • Held: jobseeker was not a “worker” for the purpose of Article 7(2) of Regulation 492/2011.
  • Therefore jobseeker not entitled to the same social / tax advantages as the nationals of host MS.
59
Q

What was held in Cristini v S.N.C.F?

A
  • CoJ interpreted Article 7(2)
  • Social advantage was enjoyed by a worker and operated in his family’s favour.
  • Widow was entitled to the fare reduction cards if her husband applied for them before his death.
60
Q

Ministry Public v Even?

A
  • Limits to the social advantages which will fall within Article 7(2)
  • Said that “social advantages” confined those which are granted to workers primarily because of their objective status as workers
  • Or by virtue of the mere fact of their residence on the national territory.
61
Q

Inzirillo v Caisse d’Allocations Familial?

A
  • Held: the right under Article 7(2) extended to a social advantage which the family member alone qualified for.
  • Italian national who lived and worked in France applied for disabled allowance on behalf of his Italian son.
  • Application rejected because his son was not French.
  • Denying child could induce worker to return home and could defeat objective of free movement of workers.
62
Q

Which principle was established by Martinez Sala v Freistaat Bayern?

A
  • Spanish national lawfully living in Germany
  • Had various jobs over that period - was now unemployed and getting benefits.
  • Applied for renewal of residence
  • Held: Union citizen who was lawfully resident in host MS had right under A18 TFEU not to be discriminated on ground of nationality in all situations which fall within scope of treaty.
  • Germany could not refuse to grant her the child raising allowance on ground that she was not in possession of a residence permit
63
Q

What happened in Grzelczyk v Centre Public Aide of Sociale?

A
  • Grzelczyk = French national
  • Studied in Belgium, self supported for first 3 year
  • In final year - applied for ‘minimex’ benefits
  • This was refused because law said that these benefits could only go to those who were Belgian residents and to non nationals who were stateless / refugees, or fell within article 7(2) Regulation 492/2011.
64
Q

What happened in the case of D’Hoop v Office National Emploi?

A
  • Held: Article 20 TFEU when read with Article 18 TFEU could prohibit discrimination by MS against one of its own nationals
  • Where that discrimination resulted from the national of the MS exercising their right as Union citizen
  • Case - Belgian national wanted a tideover allowance from her own national government (unemployment benefit for young people)
  • Held: she was not a worker so could not rely on Article 45 TFEU or regulation 492/2011.
65
Q

What happened in Collins v Secretary of State for Work and Pensions?

A
  • This followed the ruling in D’Hoop
  • Held: jobseekers cannot claim entitlement to social advantages under article 7(2) of Regulation 492/2011
  • Dual Irish + American nationality
  • Studied in UK for 1 semester and had returned for a stay of 10 months while he did part time/ casual work.
  • Application was denied because he was assessed as not being habitually resident in the UK.
66
Q

What does Article 24(1) of Directive 2004 / 38 provide?

A
  • The general right to equal treatment for Union Citizens and their family members.
  • However 24(2)(a) Directive says that MS are not obliged to confer entitlement to social assistance, during the first 3 months of residence
  • Or during the period that job seekers are entitled to remain under Article 14(4)(b)
67
Q

What happened in the case of Dano and Dano v Jobcentre?

A
  • Looked at the relationship between the principle of non-discrimination under Articles 20/21 TFEU, read in conjunction with Article 18 TFEU AND the right to equal treatment under Article 24 of Directive 2004/38.
  • Dano & son were Romanian nationals, living with her sister in Germany.
  • Dano - issued with German residence card of unlimited duration
  • She had not worked in Germany - there was nothing to indicate that she was looking for work.
    Held: prohibition on discrimination against Union citizens provided by Article 20/21 TFEU read in conjunction with Article 18 = exercised subject to the conditions and limitations that are laid down by Article 24 of Directive 2004/38.
68
Q

Where can further rules regarding social security benefits be found?

A
  • Regulation 883/2004.
69
Q

How was the term ‘vocational schools’ defined in Brown v Sec of State for Scotland?

A
  • Establishments which provide only instruction interposed between periods of employment
  • Or else closely connected with employment, particularly during apprenticeships
  • This is not the case as far as universities are concerned.
70
Q

What rights did the courts establish in the case of Gravier v City of Liege?

A
  • Right to vocational training was referenced in this case even though it was not mentioned in the treaty.
  • French national - charged enrolment fee for a higher education course in strip cartoon art in Belgium. Belgian students were not required to pay for this.
  • Held: course in strip cartoon art was a form of vocational training.
  • Defined vocational training broadly
71
Q

How did Gravier v City of Liege define ‘vocational training’?

A
  • Any form of education
  • Which prepares for a qualification
  • For a particular profession / trade/ employment
  • Whatever the age and the level of training of the pupils or students
  • And even if the training programme includes an element of general education.
72
Q

What happened in the case of Blaziot v University of Liege?

A
  • Held: university education will generally satisfy the definition of vocational training.
  • Only exception to this are courses which (because of their nature) are intended for people wishing to improve their general knowledge, rather than to prepare themselves for an occupation.
73
Q

What did the Gravier case concern?

A
  • Fees charged for access to education.
  • Did not consider educational grants
  • Was evident that there would be significant financial implications for MS if the same reasoning was applied to educational grants.
74
Q

Lair v University Hannover

A
  • More measured approach adopted by CoJ to address the issue of educational grants
  • French national, had worked intermittently for 5 years in germany
  • After this time she started full time German University course
  • Refused maintenance grant by that university because she had not been engaged in regular occupational activity in Germany for a total period of 5 years
  • (prior to commencing the course)
  • There was no equivalent requirement for German nationals
75
Q

Brown v Secretary of State for Scotland - what are the case facts?

A
  • More measured approach adopted by CoJ to address the issue of educational grants
  • Person of British / French dual nationality.
  • Completed schooling in France.
  • Accepted by a British university to study engineering.
  • Before course started he did an 8 month placement in Scotland, for which a place in a university course is a prerequisite.
  • Was refused a student maintenance grant by the Scottish Education Department
76
Q

Which key principles were established in Brown v Secretary of State for Scotland?

A
  • Brown: grants to students for mainenance / training fell outside scope of treaty, because educational policy has not been entrusted to the Community. Therefore the principle of non-discrimination under Article 18 was not applicable.
  • This was in stark contrast with Gravier.
77
Q

Which key principles were established in Lair?

A
  • Held: maintenance + training grants were social advantages within the meaning of Article 7(2) Regulation 492/2011.
  • Therefore entitlement to a grant under that article would be dependant on the person having the status of a worker.
  • The courts were not prepared to confine this just to people who were in a continuing employment relationship
  • Held - person who is no longer in an employment relationship will retain the status of a worker, for the puprose of qualifying for the grant if there is a link between their previous employment + later studies.
78
Q

Explain whether it was held that the claimant in Brown v Secretary of State for Scotland could rely on Article 7(2) of Regulation 492/2011?

A
  • Was accepted that he was a worker within the meaning of Article 7(2) of regulation 492/2011 whilst undertaking his work placement
  • Held - he could not rely on Article 7(2), because his status as a worker had been acquired exclusively as a result of his being accepted for admission to university to start studies.
  • Would not have been employed by this employer if he had not already been accepted for admission.
  • Employment relationship was merely ancillary to the studies to be financed by the grant.
  • CoJ - able to guard against students who were undertaking a short period of casual work - and then using this as the basis for claiming entitlement to educational grants.
79
Q

Where is the key provision for workers children found?

A
  • Article 10 Regulation 492/2011.
80
Q

What did Casagrande v Landashauptstadt Munchen find?

A
  • “admitted… Under the same conditions” in Article 10 of Regulation 492/2011
  • Held: it referred not only to admission, but also to general measures that were intended to facilitate educational attendance.
  • This included educational grants.
  • Grants had to be awarded under condtions that did not discriminate between children of national workers + children of workers who are nationals of other MS.
  • Conclusion: it was unlawful for German authorities to refuse a monthly educational grant for school age children to the daughter of an Italian national working in Germany on the ground that the daughter was not German.
81
Q

Explain the wide interpretation of Article 10 that was provided in the case of Echternach and Moritz v Minister van Onderwijs en Wetenschappen?

A
  1. Equal treatment principle for children of migrant workers under Article 10 extends to all forms of education (inc. university + technical colleges)
    1. Children of migrant workers who have been studying in host State retain rights under Article 10 where his working parent, having been employed in host state has returned. Child, having been unable to pursue his studies in the state of origin, was required to remain + complete his education in the host state.
  2. Court reiterated that the children of migrant workers where entitled to educational grants under the same conditions as the host MS own nationals - its observed with reference to Article 7 (2) of Directive 492/2011 - that educational grants were social advantages.
82
Q

Grzelczyk v Centre Public Aid Social?

A
  • French national studying in Belgium
  • In his 4th and final year applied for a “minimex” subsistence payment.
  • This was refused because he was not a Belgian national + he did not fall into one of the categories of foreign nationals who would be eligible for it under Belgian law.
83
Q

Martinez Sala v Freistaat Bayern?

A
  • Applied the Grzelcyzk v Centre Public Aid Social Principle.
  • Union citizen who in accordance with Article 20 TFEU.
  • Was lawfully resident in the host MS, had a right under Article 18 TFEU not to suffer discrimination on the ground of nationality, in all situations which fall within the scope of the Treaty

Difficulty 1: Brown had concluded that educational policy fell outside scope of Article 18 TFEU, therefore A18 was not applicable. Disposed of this: held - this was no longer the case following the introduction of the new chapter on Educational / Vocational Training in the Maastrist Treaty + adoption of Directive 2004/38 which provided for the free movement of students.

Difficulty 2: Article 20 TFEU - provides that the right of a Union citizen to move and reside in another MS is subject to the limitations + conditions laid down in the Treaty and by secondary legislation.

84
Q

What did the decision in Grzelczyk make clear?

A
  • That the principle of ‘equal treatment’ for Union citizens provided by Article 20 TFEU, read with Article 18 TFEU applied to social security benefits from maintenance grants.
  • Article 3 of Directive 93/96 - provided expressly that Directive did not establish any entitlement to the payment of student maintenance grants by the host MS.
85
Q

Which case resolved the issue of whether or not entitlement to maintenance grants continues to be confined to the principles in Brown and Lair?

A
  • R (Bidar) v Ealing LBC
  • French National who entered UK with his mother, who was to receive medical treatment.
  • Lived with his grandmother as her dependant + completed his secondary education there.
  • He then began an Economics degree at a London uni - was granted financial assistance in respect of tuition fees, but application for student loan was reject
  • Satisfied the residence requirements in the UK
  • But did not satisfy the legal requirement of being ‘settled’ in the UK
  • CoJ - repeated that educational policy now lay within the scope of the treaty - held that Article 3 Directive 93/96 merely provided that the Directive itself could not preclude the rights to equal treatment in respect to student grants + loans, from arising from Article 20 tFEU read in conjunction with Article 18 TFEU.
86
Q

What are the requirements to have equal treatment to UK nationals in respect of student grants or loans?

A
  • Union citizen who enjoyed right of residence in UK under article 20 TFEU had right to equal treatment under Article 18 TFEU in respect of student grants / loans
  • Bidar fulfilled these requirements.
  • Courts established that Bidar had right to equal treatment - considered if residence and settlement requirements for a student loan under UK law discriminated against him.
  • Held: these laws were directly discriminatory - risked placing nationals of other MS at a disadvantage
  • Led it to determine whether or not such indirect discrimination
87
Q

What happened in the case of Forster v Hoofddirectie van de Informatie Beheer Group?

A
  • Held: a condition of 4 years continuous residence could not be seen as excessive, in order to ensure the degree of integration of migrants in the host MS.
88
Q

Which article of which directive provides a general right to equal treatment within the scope of the treaties for Union citizens?

A
  • Article 24(1) Directive 2004/38
  • Provides general right to equal treatment…
  • In the context of further education this is further qualified by Article 24(2)(b) - this limits the people who MS can be obliged to pay student maintenance grants and student loans (even for vocational training)
89
Q

Where are the derogations for the rules surrounding movement of workers found?

A
  • Article 27(2) of Directive 2004/38
  • Derogations on grounds of public policy, security, and health.
  • This list is not exhaustive.
90
Q

In which case was the Van Duyn conclusion that public policy derogation can be relied on by MS?

A
  • Adoui and Cornuaille
    • Deportation must be not arbritary
  • Discrimination must not be arbitrary
  • Belgian Ministry of Justice wanted to deport 2 French nationals because they were prostitutes
  • Prostitution itself not unlawful - but some associated activities were unlawful.
  • Held : it was arbitrary to rely on the derogation to expel or refuse admission to nationals of another MS by reason of their conduct where its own nationals would not be subject to repressive measured intended to combat the same conduct.
91
Q

Which case said that deportation cannot be for the purpose of deterring others?

A
  • Bonsignore v Oberstadt der Stadt Koln
  • Deportation cannot be for purpose of deterring others
  • Italian worker resident in West Germany - convicted and fined for unlawful firearm possession + causing brothers death
  • Could not deport him just to deter others
  • Deportation CAN be made for breaches of the peace and public security which might be committed by individual affected.
92
Q

Which case said that the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting fundamental societal interests?

A
  • R v Boucherau
  • Person who had been convicted twice in less than 1 year for drug possession.
  • Left to national court to see if this represented ‘serious threat’
93
Q

Which case said that past criminal convictions alone are not grounds for deportation?

A
  • R v Boucherau
  • This was originally provided in directive 64/221
  • Existence of previous conviction can be taken into account as long as the circumstances give rise that the convictions are evidence of personal conduct which constitutes a genuine, present and sufficient threat to the requirements of public policy
  • Which affects one of the fundamental interests of society.
94
Q

Which case said that exclusion must be compatible with fundamental human rights?

A
  • Rutili v Minister for the Interior - free movement of persons.
  • Italian national who lived in France since birth and was employed in France.
  • There were complaints about his trade union activities, so was stopped from living in Lorraine in France.
  • Has to be proportionate.
  • Held: prohibition on residence which is justified on the ground of public policy derogation may be imposed only in respect on the whole of the national territory.
95
Q

Which case said that FUNDAMENTAL RIGHTS must be taken into account in determining whether or not a measure which restricts the free movement of a person can be justified on the ground of public policy?

A
  • Orfanopoulous v Land Baden Wurttemberg
  • Greek national drug addict - was being expelled from Germany after being convicted several times.
  • Lived there since he was 13 and married a German national - had 2 children with her.
  • Held: the right to respect for family life guaranteed by Article 8 ECHR had to be taken into account, as he was being removed from a MS where close family members were living
  • Also emphasised that proportionality must be observed.
96
Q

Which article of which directive provides that derogations shall not be invoked to serve economic ends?

A
  • Article 27(1) of Directive 2004/38 provides this

- Further safeguards are provided in Article 28

97
Q

Which article of which directive has the rules governing the public health derogation?

A
  • Article 29 Directive 2004/38
98
Q

What is the public service exemption? Which article is it found in?

A
  • Article 45(4) - says that the provisions of Article 45 shall not apply to employment in public service.
  • Reflects the conviction among MS that they should retain full sovereignty in appointments to the public service and be able to discriminate in favour of their own nationals
    • Because of issues of security and loyalty to the State
  • Courts wanted to ensure that this was not used merely as a convenient tool for protectionism by giving it a relatively narrow inspection.
99
Q

Which case made it clear that it was NOT for MS to define the scope of the public service exemption? What happened?

A
  • Sotgiu v Deutsche Bundespost
  • Said that MS cannot define the scope of the public service exemption
  • And that Article 45(4) cannot be relied upon to justify measures that discriminate against nationals of other MS, once they have already been admitted to the public service.
100
Q

In which case has the scope of the public service exemption been defined?

A
  • Commission v Belgium “public employees”
  • Held - Article 45(4) removes from Article 45 TFEU.
  • Advertisements for several posts with 2 Belgian national railway companies
  • 2 Belgian local authorities that were reserved for Belgian nationals only
  • Held: the posts “principal + work supervisor, stock controller, night watchman and architect” at the local authorities did fall within the pubic service exemption.
  • All of advertised posts within Belgian national railway companies did not
  • Held - Trainee teachers in state schools (Lawrie Blum) + nurses in public hospitals (Commission v France “French nurses”) - also fall out of the scope of Article 45(4)
101
Q

Which cases state that trainee teachers and nurses in public hospitals fall outside of the scope of Article 45(4)?

A
  • Lawrie- Blum - trainee teachers in state schools fall outside of scope of Article 45(4).
  • Commission v France ‘French Nurses’ - Nurses in public hospitals falls outside the scope of Article 45(4).

EU Law (8 decks)

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