EU law Week 4- Lecture Flashcards
1
Q
Please shortly describe how the EU deals with free movement of persons (EU nationals and TCNs)
A
EU nationals:
1) NOT economically active -> European Citizenship (Art 18-25 TFEU)
2) Economically active (internal market) -> workers (Art 45-48TFEU) AND self-employed: Freedom of establishment (49-55TFEU) and services (Art 56-62TFEU)
- Also Citizens Rights Directive
TNC:
1) Rules free movement UE nationals - as a family member
2) Tge ASFJ Tittle 5 TFEU (art 67-89TFEU)
3) Treaties EU Their country
2
Q
FREE MOVEMENT OF PERSONS: Workers addition: Please describe the conditions and where are they?
A
Articles 45-48 TFEU (EU Nationals, Economically active):
- Conditions:
- Holding the nationality of (at least) one of the Member States of the EU
- Being a ‘worker’ in the host MS = Any person who pursues activities which are:
- [1] effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is that for a certain period of time a person performs services
- [2] for and under the direction of another person
- [3] in return for which he receives remuneration
3
Q
Can a part time worker also be a worker? Which case? Describe
A
Kempf case
- Question: Can a part time worker also be a worker?
- A German music teacher who gave 12 lessons a week at a school in the city of Zwolle, the Netherlands
- And therefore he wanted to supplement his income by financial assistance payable out of the Dutch public funds (‘aanvullende bijstand’)
- ECJ:
- A part-time worker may also qualify as a ‘worker’ within the meaning of (now) Article 45 TFEU
- As long as his activities are “effective and genuine”
- And therefore Mr. Kempf was entitled to additional financial assistance from the Dutch public funds (under the same conditions as Dutch workers = non-discrimination on grounds of nationality)
- Once you fall under “worker” you get the right of non-discrimination on ground of nationality
4
Q
Can EU nationals that haven’t found a job yet also enjoy certain rights under art 45 TFEU? Which case?
A
Also certain rights for EU jobseekers = Antonissen case
- EU nationals that haven’t found a job yet, also enjoy certain rights under art 45 TFEU
- Right of residence to look for a job in another MS during a “reasonable” period “The effectiveness of [Article 45 TFEU] is secured in so far as the legislation of a Member State gives persons concerned a reasonable time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged” (para. 16).
-
Continued right of residence if your quest for work is not hopeless: “if after the expiry of that [reasonable] period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State” (para. 21)
- Job seekers are given a reason to find a job and even extended time when there are genuine chances of being engaged.
5
Q
Please describe the rights of residence of migrant workers?
A
-
Right of residence in the host Member State
- Note: a transitional period of 7 years (at the maximum) applied to workers from the 8 Eastern European Member States until 1 May 2011; for Romanian and Bulgarian workers until 1 January 2014; for Croatian workers until 1 July 2020.
-
Directive 2004/08:
- Art. 6: Up to three months: only hold a valid passport/identity card
- Art. 7: 3 months - 5 years:
- economically active (worker or self-employed person)
- not economically active but sufficient resources + sickness insurance
- student + sufficient resources + sickness insurance
- Art. 16: after 5 years: right of permanent residence
-
No discrimination, directly nor indirectly, on grounds of nationality (art. 45(2) TFEU and Art. 7 Regulation 492/2011)
- A directly effective prohibition, both vertically and horizontally (Bosman, Angonese, etc.)
6
Q
Which rights are established in the Citizens Rights Directive? Art 2? Example case?
A
- A right to family reunification, regardless of the nationality of those family members (Art 2 (2) of Directive 2004/2008) →
- the spouse;
- the partner with whom the Union citizen has contracted a registered
- partnership, if the legislation of the host Member State treats registered
- partnerships as equivalent to marriage;
- the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner;
- the dependent direct relatives in the ascending line and those of the spouse or partner.
→ For example (based on Case C-1/05, Jia)
- Ms. Schallehn (German national, found a job in Sweden) → → Sweden (Ms. Schallehn (EU national, active), married to Mr. Shenzhi Li (Chinese) ← China (Ms. Jia- Chinese mother of Mr. Li third country national (She joined in Sweden because of family reunification (falls under 4point))
- If Ms. Schallehn did not move and stayed in Germany, would she be entitled to family reunification to spouse and mother of the spouse? NO because it only applies to migrant workers. If you stay you are under internal laws and EU law does not apply as to EU nationals. So what you do is:
1. Situation wholly internal (Ms Singh is UK national in UK)
2. Sent on the ‘Europa route’
3. In Germany she worked for 3 months and (Ms/Mrs. Singh = WORKER married to Mr. Surinder Singh (India, TCN))
4. Return to your own country, but together with your TCN spouse!
- If Ms. Schallehn did not move and stayed in Germany, would she be entitled to family reunification to spouse and mother of the spouse? NO because it only applies to migrant workers. If you stay you are under internal laws and EU law does not apply as to EU nationals. So what you do is:
7
Q
What are the exceptions to free movement of workers?
A
- No discrimination/no obstacles to free movement of workers (art 45 (1) and (2) TFEU)
- Public policy, Public security, Public Health (art 45 (3) TFEU)
- Employment in the public service (art 45 (4) TFEU)
- Rule of Reason’ Exceptions
-
Public policy exception
- More detailed rules in Articles 27-33 of Directive 2004/38, which also codify existing case law of the ECJ:
- Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
- Measures taken on grounds of public policy shall comply with the principle of proportionality (codification of the Calfa judgment)
- Measures shall be based exclusively on the personal conduct of the individual concerned.
- Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
- The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (cf. Bouchereau judgment)
- Justifications that rely on considerations of general prevention shall not be accepted
- MS must take account of the personal situation of the citizen: how long he/she has resided on the territory of the host state, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State, links with the country of origin.
- More detailed rules in Articles 27-33 of Directive 2004/38, which also codify existing case law of the ECJ:
-
Public Services Exception
- Art. 45(4) TFEU, also interpreted narrowly by the ECJ:
- Only access to certain professions
- Only activities which “in themselves are directly and specifically connected with the exercise of official authority” fall under the exception
- This presumes “a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality”
- Unlike the public policy exception, Public services exception is not worked out in the Citizens’ Rights Directive. We have to look at the case law
- So the ECJ decides for each profession on a case-by- case basis.
- A teacher, a professor, a judge, a practising lawyer, a nurse in a public hospital, a member of the secret service, a MP, civil law notaries?
- Art. 45(4) TFEU, also interpreted narrowly by the ECJ:
8
Q
Describe the Establishment of self employed persons. Which article?
A
-
Art. 49 TFEU, Establishment:
- “…Restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. […] Freedom of establishment shall include the right to take up and pursue activities as self- employed persons and to set up and manage undertakings […]
9
Q
Describe the Services of Self employed persons. Which article?
A
-
Art. 56, Services:
- “…restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”
10
Q
Which case shows the difference between establishment and services of self employed people?
A
-
Difference? → Gebhard case:
- “25. The concept of establishment (…) is therefore a very broad one, allowing a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom (…)”. “26. In contrast, where the provider of services moves to another Member State, the provisions of the chapter on services (…) envisage that he is to pursue his activity there on a temporary basis”.
11
Q
Which excuse/justifications are possible for not allowing a self employed person to stay? (Treaty and case law)
A
- In Treaty:
- Art. 51 TFEU: exercise of official authority
- Art. 52 TFEU: public policy, public security and public health
- In case law CJEU:
- Gebhard (para. 37): “national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a nondiscriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it”
12
Q
Which articles establish the EU citizenship rights?
A
- Art 20 TFEU: personal scope of application
- CJEU in the Grzelczyk case: “Union citizenship is destined to be the fundamental status of nationals of the Member States”
- Art. Art. 21 TFEU: right of free movement all over the Union
- Art. 22-24 TFEU: ‘political’ rights of EU citizens
13
Q
Describe the Baumbast case
A
- Art. 21(1) TFEU (ex Art. 18(1) EC), directly effective?
- “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”.
-
ECJ in Baumbast: yes!
- It is clear what the “limitations and conditions” entail:
- Sickness insurance
- Sufficient resources to avoid becoming a burden of the social assistance system of the host Member State
- Now codification in Article 7 of Directive 2004/38.
14
Q
Describe the Chen case
A
- UK: Chinese family having troubles with their residence permints
- Mother Chen moves to Ireland where daughter Catherine is born
- (Northern) Ireland ius soli principle (Irish nationality by birth)
- Mother and daughter return to the UK because she had this right under article 21 (but you have to have insurance and sufficient money)
- Daughter Catharine (with sickness insurance and sufficient resources): falls under free movement of EU citizens (paras. 24-41)
- And how do we get mother Chen (primary carer of Catherine but still a third country national) back to the UK? (paras. 42-47). She came back because she was the care taker of Catherine
- The Aftermath: Planeloads of pregnant mothers Chen were
sent to Ireland by their immigration lawyers – but
subsequently the Irish changed the ius soli principle in
their Constitution.
- The Aftermath: Planeloads of pregnant mothers Chen were
15
Q
Describe the Zambrano case
A
- Non economically active + EU citizenship
- You have two children (Diego and Jessica)- Belgium children from two 3rd country nationals. How did they become Belgium? … They also became EU citizens. And then they said “In order to stay in Belgium I want my dad to stay as well”- not only residence permit but he has a right to work as well.
-
ECJ: Yes!
- Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen”.
- Civil war in Colombia
- What is the main difference between Chen and Zambrano? Why the court in Zambrano goes further than Chen?
- Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen”.
