6. Free Movement of Persons Flashcards
Individual Status
There are FOUR status’ important in this area.
- WORKERS (who are EU citizens)
- UNION CITIZENS
- (NON-EU) FAMILY MEMBERS
- OTHER BENEFICIARIES
Individual Status - WORKERS
‘Worker’ is defined (broadly) in (Hoekstra).
Must be MS national.
The ‘Worker’ Test:
- The work must be a GENUINE and EFFECTIVE activity (Levin), (Kempf).
- engaged in an econ. activity with character of gainful employment (Walgrave & Koch).
- TEST: The worker must: perform services, for another under their direction and for remuneration (Lawrie-Blum).
Worker status also includes Job Seekers.
- Job seeker rights are limited to entry and residence to seek employment (Royer).
- For a reasonable period of time (6 months), (Antonissen).
NB: A JS can’t be expelled if can show they are CONTINUING to seek employment and has a GENUINE CHANCE. (D2004/38 Art 14(4)(b)) - enshrines Antonissen.
Individual Status - Union Citizen
Def: Every person holding the nationality of a MS. (TFEU Art 20).
Individual Status - Non-EU Family Members
Def: any of the following in relation to an UnionC (D2004/38 Art 2(2)).
- Spouse, Registered Partners, Direct Descendants or Dependent Direct relatives in the ascending line.
These individuals have certain RESIDENCE RIGHTS according to D2004/38.
Individual Status - Other Beneficiaries
Def: “ (D2004/38 Art 3(2)).
- Dependants, members of the household, persons who require the personal care of the family member, partners of a durable relationship with a UnionC.
Have LIMITED entry and residence rights according to D2004/38.
Rights of E and R - ENTRY
W: Yes (Art 20, 21, 45 TFEU)
- REQ: valid ID card or passport (Art 5(1) D2004/38).
JS - ‘’ as W above.
UnionC: Yes (Art 5(1) D2004/38).
- REQ: ‘’ as above.
Non-EU FM: Yes (Art 5(1) D2004/38).
- REQ: valid passport (Art 5(1) D2004/38), AND MAY require an entry visa dependent on national law/R No.539/2001 (Art 5(2) D2004/38).
OB: Unclear, MS only required to facilitate entry (Art 3(2) D2004/38).
Rights of E and R - R up to 3 months
W: Yes (Art 6(1) D2004/38).
- REQ: valid ID or passport (Art 6(1) D2004/38)
AND, mustn’t become an UNREASONABLE BURDEN on MS (Art 14(1) D2004/38).
JS: ‘’ as above
Union C: ‘’ as above.
Non-EU FM: COND (Art 6(2) D2004/38)
- REQ: valid PP (Art 6(2)) + must be accompanying/joining a UnionC (Art 6(2)) + not become UnRBurden on MS (Art 14(1) D2004/38).
OB: Unclear, MS only required to facilitate residence (Art 3(2) D2004/38).
Rights of E and R - R beyond 3 months
W: Yes INDEFNINITELY (Art 7(1) D2004/38).
- REQ: must be W or self-employed (Art 7(1)), or W must be temporarily unable to work, a registered JS or undertaking vocational training that relates to previous employment (Art 7(3)).
JS: Yes, up to 6 MONTHS (Art 14(4)(b) D2004/38 + Antonissen).
- REQ: None
- BEYOND 6 months is COND, must be seeking with GENUINE CHANCE (Art 14(4)(b) + Antonissen).
UnionC: COND (Art 7(1) D2004/38).
- REQ: must have SUFFICIENT RESOURCES not to become a burden on MS and insurance cover in MS (Art 7(1)(b)), OR be enrolled at private/public establishment following a course of study, insurance cover and declaration of sufficient resources (c), OR accompanying a UnionC who is a worker/satisfies the above points (d).
Non-EU FM: COND (Art 7(2) D2004/38).
- REQ: Same as Art 7(1)(d) D2004/38 as for UnionC.
OB: Unclear, MS only required to facilitate residence (Art 3(2) D2004/38).
Rights of E and R - Permanent R
W: Yes, where legally resident in MS for cont. period of 5 years (Art 16(1) D2004/38).
NB, can gain right to PR prior to 5 year period (Art 17(1) D2004/38).
JS: ‘’ as for W above.
UnionC: Yes, where legally resident in MS for cont. period of 5 years (Art 16(1) D2004/38).
Non-EU FM: ‘’ (Art 16(1) D2004/38).
NB, can gain right prior to 5 year period (Art 17(3) D2004/38). Ie, if they are with a UnionC W satisfying the early PR rights criteria in Art 17(1).
Other Issues: Retention of Residence
SEPARATION: Spouse will not lose RtoR if separate but remain married (Diatta).
DEATH: governed by Art 12 D2004/38.
- Death of UnionC doesn’t affect non-EU FM given that they were resident in MS for at least 1 year before the death (Art 12(2)).
- To acquire PR FM must show that they are: W, OR have sufficient resources and insurance cover or are FM of a person satisfying these requirements. (Art 12(2)).
DIVORCE: Spouse can remain if meet one of the below conditions (Art 13 D2004/38):
- Relationship lasted 3 years, one year being in the MS.
- The non-EU spouse has child custody.
- It is justified by circumstances (abuse).
- Court ordered access to children in MS.
Other Issues: Non-Discrimination
W (Art 45(2) TFEU)
- DIRECT: will breach, unless justified under Art 45(4), employment in Public Service (Comm v France (French Seamen)).
- INDIRECT: will breach, unless objectively justified AND proportionate (Groener (protection of language granted), Ugliola, Sotgiu).
- NON-DISC. Rules: may be prohibited if provision hinders free movement (Bosman, Kraus).
UnionC (Art 18, 20 and 21 TFEU)
- DIRECT: will breach (Martinez Sala), reads in Art 18 TFEU.
- INDIRECT: will breach, unless obj. justified (D’Hoop, Collins).
Other Issues: Employment Rights
Governed by Art 23 D2004/38.
Regardless of nationality, FM of UnionC with RtoR are entitled to take up employment/self-emp there.
- able to enjoy rights conferred by R 492/2011 (Gul).
Other Issues: Social and Tax Advantages
Governed by Art 7(2) R492/2011.
EU workers enjoy “same social and tax advantages” as nationals. These being advantages granted due to status as workers (Ministere Public v Evan).
- irrelevant whether connected to contracts or not (Cristini).
- ONLY available to W, not JS (Collins), can extend to FM (Cristini) reduced rail costs, (Inzirillo) handicapped allowance to resident non-national adults.
- if become economically inactive, MS can deny them the advantages (Kaczmarek).
Other Issues: State Support
GR: once lawfully resident in MS, UnionC has right to be treated equally in any area covered by EU Treaties. (Art 18 TFEU, Martinez Sala, Art 24 D2004/38).
- they need not be eco. active (Bidar).
MS need not: (Art 24 D2004/38)
- confer entitlement to support during first 3 months of residence, or 6 months for JS (Art 14(4)(b)).
- grant maintenance aid for studies to persons other than W or FM prior to the acquisition of right to perm. residence. (Dano).
Other Issues: Education Rights
Governed by R492/2011.
Vocational Schools (Art 7(3) R492/2011). - W have same rights as nationals to training in vocational schools. NB, 'Vocational Schools' is defined narrowly and doesn't include University (Brown).
Vocational Training
- any form of education which prepares for a qualification. (Gravier).
- University education typically constitutes VT, unless course designed to improve general knowledge rather than prepare for profession (Blaziot).
- W children have same rights to VT as nationals (Art 10) + (Casagrande). This access is interpreted more widely.
- right will not be lost if parent W returns to origin MS and child couldn’t continue studies in that MS (Echternach and Moritz), also extends Art 10 to all forms of education.
