EU law - Week 4 - Tutorial Flashcards
In Dutch legislation it is provided that judges must possess Dutch nationality. Is this rule in violation of the EU rules on the free movement of persons because it directly discriminates against other EU nationals on the ground of their nationality?
- Judges are public servants
- Art. 45(4) TFEU: employment in public service exception
- Thus, in this case direct discrimination based on nationality is allowed
Jan de Boer, a Dutch national and a practicing lawyer, is living in the Netherlands, together with his Turkish wife Ozge. In November 2021 he finds a good job at a law firm in Berlin, Germany. Therefore he wants to move to Berlin and live there permanently together with his wife Ozge. Discuss whether Jan and Ozge fall under the free movement of workers, the freedom of establishment or the freedom to provide services.
- Jan: EU citizen → condition: Holding the nationality of (at least) one of the Member States of the EU
- Ozge: TCN → in principle,
she does not fall under the freedoms of the internal market (worker, establishment, services). But she is the wife of a migrating EU national (Jan) and therefore she has a right of residence in Germany and also a right to equal treatment in Germany - This follows from
Article 2(2) in combination with Art 7(1)(2) & Article 24(1) of the Citizens Rights Directive (CRD, Directive 2004/38) - Her rights are derived from her husband’ rights
What are the different categories of rights of residence for European Union citizens in
Member States other than their Member State of nationality?
Citizens Rights Directive (CRD) (2004/38)
1. Short term
- Art. 6: Up to three months - only hold a valid passport/identity card
2. Mid-term residence
- 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
3. Permanent residence
- Art. 16: after 5 years: right of permanent residence
Establish the facts of the Bosman case
● Football player for Belgian Club Liege; contract expired in 1990
● Wanted to change teams and move to French club Dunkerque
● Dunkerque refused to pay transfer fee demanded by Belgium club and thus the club refused to release Bosman (UEFA rules allowed this). In meantime his
wages reduced, he was no longer 1st team player.
● 5 years of litigation that “destroyed” his career
What was the ruling in the Bosman case?
Issue:
- The case concerned transfer rules (under which a professional footballer may not at the expiry of his contract with a club be employed by another club unless the latter has paid a transfer fee) as well as nationality clauses (determining how many citizens of another member State that can be fielded in matches in a member State) adopted by UEFA, a private association of football clubs. These were claimed by Bosman to restrict free movement of workers.
Ruling:
-Though EU free movement law ordinarily deals with restrictions on free movement by member States, the
Court ruled that what is now Art. 45 TFEU has horizontal direct effect – i.e could be invoked by Bosman against the UEFA, a private association
- The Court found that transfer fees are an obstacle in the free movement of workers without any exceptions or justifications
- As regards the nationality clauses of UEFA, the Court ruled that these directly discriminate against foreign EU footballers contrary to now Art. 45 TFEU, without justifications
How did Catherine Chen acquire European Union citizenship?
■ The Republic of Ireland (another EU country) grants Irish citizenship to persons born in N/Ireland (ius soli principle) because of peculiar history & ties of the Republic to Northern Ireland
■ UK does not apply the ius soli principle (birth in UK does not entitle you to citizenship)
so Catherine’s mother (Chinese, living in Wales,UK) goes to N/Ireland to give birth so Catherine can acquire Irish (and thus EU) citizenship and use it to apply for residency rights in the UK
■ Thus, Catherine became an EU citizen because Art. 20 TFEU states that everyone holding the nationality of a Member State shall be a citizen of the Union
How
did Diego Ruiz Zambrano acquire European Union citizenship?
Diego Zambrano was born in Belgium to two third country nationals, who were Colombian. The parents did not take steps for him to become a Colombian national and therefore, under Colombian nationality law, Diego did not acquire the Colombian nationality. Since he thus was about to become a stateless person, and since he was born in Belgium, Belgian nationality law (at that time) said that he obtained Belgian nationality.
What are the key sources of free movement law?
● The Treaties
● Secondary legislation further implementing or developing the treaty provisions - e.g. Directive 2004/38 (The Citizens Rights Directive) and Regulation 492/2011 (Free Movement of Workers Regulation)
● Case law (interpreting the treaties & secondary legislation)
–» All these sources can apply simultaneously
What is the definition of a “Worker of a Member State” (from Lawrie-Blum case)?
● EU national
● Performs activities that are effective and genuine (not marginal or ancillary)
● For a certain period (therefore “settled” worker)
● For or under the direction of an employer
● For remuneration/pay
What was established in the Lair Case?
Facts:
● French national residing in Germany (host State)
● Ceased work as a teaching assistant at German university, applied for a
maintenance grant for university studies to argument her professional
qualifications (which she argued was a worker’s right under EU law)
Court:
● Worker’s rights are not necessarily dependent on actual or continuing existence of an
employment relationship. Non-employed can qualify as a worker and enjoy worker’s rights provided the rights possess link of continuity with the previous occupation. Grant for university studies had link to previous employment as university staff.
Where do you find the distinction btw workers, self-employed, service providers ?
Distinction between
workers (Art. 45 TFEU),
self-employed (Art 49
TFEU) & service
providers under Art. 56-57
TFEU).
What are the public service/official authority exceptions?
Based on Art.45(4) TFEU = employment in the public service (workers) or on Article 51 TFEU = exercise of official authority
Cases:
1. Commission vs Belgium (1980)
□ Involve exercise of public (law) power
□ Safeguard the general interests of the State (i.e not private interests)
□ Involve special relationship of allegiance to State and reciprocal rights and
duties which characterize the bond of nationality
2. Reyners
□ A dutch national (born in Brussels to Dutch parents) obtained a Belgian law degree –» when applying to become a barrister, his application was denied because only Belgian nationals could practice the legal profession. Such direct discrimination on the ground of nationality was clearly in breach of Article 49.
□ Court: the activities within the profession has to do smth with the exercise of public authority → lawyers do not fall under, whereas judges do exercise
What are the important articles of the Directive 2004/38?
□ Purpose of directive : Preamble/recital para 4; Art 1 of the Directive
□To whom does it apply:
1. See Art. 3 (and Art 2) Directive
2. See Art. 3 that makes clear rights holders are citizens who move to and reside in EU State other than their own
