FMOW Flashcards
What governs the FMOW
what is the FMOW
Art 45 TFEU
One of the fundamental pillars of the EU
The Single Market
Aims to remove non-fiscal barriers to trade.
Article 26(2) TFEU: The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.
Allows for the free movement of goods/workers, etc.
Aim: To remove any unnecessary trade barriers.
Definition of a worker
The CJEU took a broad and expansive approach because the EU is dealing with one of the four fundamental pillars.
Job seeker/social security benefits
Free movement is not as straightforward as it used to be in the past.
Emergence of welfare tourism: Fears that a lot of people would come into their countries and seek benefits.
Economic rationale for FMOW
To better enable economic flourishing in the EU by removing barriers to trade.
Removing restrictions for people to provide their services will in turn allow the EU to make more money as a whole.
Social rationale for FMOW
If workers move around the union with their families, the union becomes closer and more integrated.
‘Even closer union’.
Text of A45
Shall: Mandatory obligation for free movement of workers.
(2) Cannot discriminate on the basis of nationality or the type of job/conditions surrounding it.
Abolition: Remove discrimination completely.
(3)(c) When you are working in that member state, must be subject to the same conditions as nationals under that state.
(3)(d) After the individual has lost their job they are allowed to stay to look for a new one.
This right is subject to the conditions that the commission makes.
NB: The EU makes the conditions not the member state.
(4) Exceptions to Article 45:
Roles that need loyalty to the state, ie. Judiciary, army etc.
Ranks of permanent government where national interest is at stake.
Other key article in relation to FMOW
Article 18 TFEU
Article 18 TFEU
any discrimination on the grounds of nationality shall be prohibited.
Things to remeber
These articles are horizontally applicable, ie. Enforceable against private parties.
Rationale: If not, it would be much harder to remove obstacles to free movement.
For Article 45 to apply, there must be a cross-border element:
Definition of a worker, who defines it
The EU cuz MS would define it restrictively so ppl dont fit into it
Overview
Prior to the citizenship directive, an individual would have to be economically active to enjoy rights to free movement.
To be classed as a worker must show:
Doing work for money/ some economic value is attached to the work.
The work is carried out under the direction/supervision/subordination of someone else.
The work is genuine and effective.
Key cases that define a worker
Levin
Kempf
Laurie Bloom
Levin
Facts: The plaintiff was a British citizen married to a third-country national and was living in the Netherlands. His wife worked some hours as a chambermaid.
Issue: Are part-time workers considered workers for the purposes of Article 45?
Held: CJEU emphasised that there must be a broad interpretation of workers and cannot interpret Article 45 restrictively.
Article 45 also applies to part-time workers.
Guarantees under Article 45 would be diminished if they were not applied to part-time work as it provides them opportunities to improve their economic situation.
Article 18: A lot more women do part-time work, so if it wasn’t considered to be under Article 45, women would be more discriminated against than men
P17: Work will not be considered work if it is only marginal and ancillary.
It must be for some genuine and effective economic value, ie. Work must be done in exchange for a financial benefit.
NB: The amount of work one has to do is relatively low.
Kempf
Facts: Concerned a German music teacher who gave 12 piano lessons a week to supplement income on welfare payments.
Plaintiff: Argued that the 12 lessons made him a worker.
State: This cannot be a genuine and effective measure of work because he relied on social welfare to supplement his income.
Issue: Is the activity genuine and effective?
Held: Where a genuine part-time worker sought to supplement his income it was irrelevant where the supplementary income was derived.
Very low threshold for what is considered genuine and effective.
Does not look at sustenance, looks at economic activity.
Laurie Bloom
Facts: Concerned a German rule restricting access of non-nationals to the preparatory stage necessary for qualifications as a teacher.
The plaintiff was a British national who had passed the German exams to qualify but could not do the preparatory training because of the rule.
Issue: Whether a trainee teacher was a worker for the purposes of Article 45?
Held: Emphasised the idea of subordination.
She was a worker for the purposes of Article 45.
An employment relationship exists when someone works for another person, under their direction, for a period of time and gets paid.
Criteria:
Activity under the direction of someone else.
Activity in return for renumeration.
What is renumeration
state cases
Steyman
Bertray
Trojani
Steymann
Facts: Concerned a German national who was working in the Netherlands for a short amount of time.
He joined a religious community and did their plumbing in return for meals and accommodation.
He was refused a residence permit and challenged the refusal on the basis that he is a worker and thus had a right of residence under Article 45.
Held: It is up to the national court to consider whether the remuneration is adequate on the basis of the evidence.
Since the work helps ensure the Bhagwan Community’s self-sufficiency and is a key part of being in the Community, the services a member provides to others can be seen as an indirect exchange or reward for their work.
Something can be remuneration if it’s a quick pro quo: exchange services in return for something else.
Bertray
Held: CJEU stated that a drug rehabilitation programme is not a genuine and effective economic activity as all it is designed to do is get someone back on their feet to be able to take up normal employment.
Trojani
Facts: Concered a French national in Belgium who was given accommodation in a Salvation. Army hostel where he performed 30 hours of handyman services a week in a ‘socio-occupational reintegration programme’.
Held: Could be considered as a worker for the purposes of Article 45.
If he wasn’t doing the work, they would have had to hire someone else to do those jobs.
State cases on job seekers
Lebon
Anttinossen
Collins
Lebon
Held: CJEU stated that social welfare and tax advantages aren’t applicable to job seekers
Note: Move away from that in Antonissen and Collins.
Anttinossen
Facts: The applicant challenged a 6-month limit on the status of job seeker in the UK.
Once that period expired, individuals were no longer a job seeker and could not seek job seeker allowance.
Held: Confirmed that job-seekers have rights pursuant to Article 45 but do not have the full status of a worker.
Aim: To prevent welfare tourism.
The 6 month period was considered reasonable.
Collins
Held: Job-seekers only benefited from the provisions of Regulation 1612/68 concerning access to employment
Who determines the public service exception
Why and state cases
A broad interpretation could exclude a large number of people, since many work in public service across member states.
Such a wide exclusion would undermine Article 45.
Sotgiu v Deutsche
Comission v Belgium
Sotgiu v Deutshe
Held: Autonomous EU law concept: it is for European institutions to define the exceptions and not member states.
Member states would adopt a broad approach and this would lead to the watering down of Article 45.
Commission v Belgium
Held: The exception was considered to apply to posts that require a special relationship of allegiance to the State, along with reciprocal rights and duties.
Elements that form the foundation of the bond of nationality.
Conclusion: Jobs with Belgian National Railways and Belgian Local Railways such as drivers, signalmen and night-watchmen and jobs with a Municipality such as nurses, electricians and plumbers not covered by the exception.
Special relationship of allegiance with the state
Who comments on this
Craige and de burca p 70
Craige and de burca p 70
Roles covered by Article 45(4) TFEU:
The armed forces
A special relationship between the individual and their country.
Police
Judiciary
Tax authorities
They engage in national interests in a particularly special way.
Certain public bodies engaged in preparing or monitoring legal acts
Example: Public servants who are advocating for national interests on the national stage.
Not included:
Nursing
Teaching
Non-military research in public establishments.
Note: The CJEU has not explicitly said that the public service exceptions apply to these roles.
If a member state has rules restricting access to these roles, it won’t automatically fall foul of Article 45.
3 types of discrimination
The Types of Discrimination:
Direct Discrimination
A rule that on its face discriminates against workers on grounds of nationality.
Indirect Discrimination
A rule that on its face appears neutral, but in practice makes it harder for non-nationals than nationals
No Discrimination
The rule makes it difficult to exercise Article 45 rights in the member state.
Indirect discrim
State case
Wurttembergische Milchverwertung Sudmilch AG v. Salvatore Ugliola
Wurttembergische Milchverwertung Sudmilch AG v. Salvatore Ugliola
Facts: Concerned a German rule that said that military service was considered for the amount of social benefit one gets.
The military service had to be performed with the German army irrespective of nationality.
Issue: Non-nationals are less likely to serve in the German military.
Held: This was indirect discrimination as in practice the requirement was much harder for non-nationals to meet than German nationals.
When can it be justified
state case
Language requirements: They can be indirectly discriminatory but can be justified in certain circumstances.
Regulation 1612 allows for an exception relating to linguistic requirements required by reason of the nature of the position to be filled.
Groener v. Minister for Education
Groener v. Minister for Education
Facts: Concerned a Dutch national who was refused a position as a secondary school art teacher on the basis that she did not have a sufficient level of Irish.
Issue: Whether the Irish desire to encourage Irish identity was a sufficient justification.
Held: Considered the Irish Government policy of maintaining and promoting the Irish language,
Example: Where a rule in the Consitution differs between Irish and English, the Irish provision prevails.
The Irish language requirement could be justified as long as it was not imposed disproportionately.
Rules which arent discriminatory but impede a 45 criteria an d state case
Excessive restriciton
Bosman
BOSMAN
Facts: Concerned a Belgian footballer who wanted to move to a French team.
UEFA rules required the purchasing team to pay a transfer fee and a payment for the release of the players football card.
French team did not purchase and the Belgian team refused to release the card and also would not allow him to play and would not allow him to leave unless the fee was paid.
Bosman won but the dispute took years to resolve and became bankrupt.
Held: The football transfer system was in breach of Article 45 TFEU.
The rule made it difficult to exercise his right to free movement.
There is a mandatory obligation on member states to remove barriers to workers moving among countries.
The transfer rules, even if applied within the same Member State, still affect players’ access to jobs in other Member States and can restrict the free movement of workers.
Therefore, they are generally prohibited under Article 45 TFEU unless they serve a legitimate, aim and are justified by urgent public interest.
Even then, the rules must be appropriate and not excessive.
Wholly internal situations state cases
R v. Saunders
Olympique
R v. Saunders
Facts: Involves a Northern Irish national who is convicted of a criminal offence before the court of England and Wales.
As part of a penalty, a travel restriction for a period of 3 years was implemented.
He was obliged to return to NI and not reenter England or Wales.
He could still go to other countries.
Argument: This restricted his right to free movement under Article 45.
Issue: Whether his freedom of movement was unduly restricted.
UK: This didn’t involve his right to freedom of movement as he was still in the UK.
Held: A member state can deprive or restrict freedom of movement within its own jurisdiction as part of a penal measure imposed by law and by reason of acts committed in that territory.
Conclusion: The matter was wholly internal.
Olympique
Facts: Concerned rules where if an individual was an apprentice footballer and signed for a club other than the club that trained them, they had to pay a fee to the initial club that trained them.
Held: The rule fell within the ambit of Article 45.
Issue: Was it justifiable?
Held: Highlighted the importance of sport and football to national identity.
This could be justified when the fee was calculated in relation to the training provided.
Conclusion: The rules were impermissible because there was no relationship of proportionality between the amount spent training them and the amount they were to give in the form of a fee.
Subtantive rights and social benefits
what reg governs thus
492/2011
s1 492/2011
equality of access to employment
s2 492/2011
equality of treatment
s3 492/2011
worker to be joined by his family and the right for his children to be educated
A1&2
right to take up employment in a host State under the same conditions as nationals without discrimination.
A3(2)
mposition of linguistic requirements
A 7
same tax and social advantages for nationals and non-nationals.
A 7(2)
state cases
He shall enjoy the same social and tax advantages as national workers.
Even
GV
Even
Facts: The defendant was a French WW2 veteran and wanted to take advantage of a Belgian rule that provided that veterans would not suffer from a deduction from their pension scheme if they were to retire early.
Argument: This was a social advantage afforded to Belgians but not to non-nationals and therefore constituted discrimination under Article 7(2).
Held: The rule was not discriminatory.
The Regulation grants benefits to workers from other Member States if those benefits are usually given to national workers because of their status as workers or residents.
The Belgian benefit is based on wartime service and aims to reward national workers for their sacrifice.
Since the benefit is tied to national recognition, not worker or resident status, it doesn’t qualify as a ‘social advantage’ under Article 7(2).
GV
Facts: Concerned a Romanian mother of a dual Irish/Romanian worker who was applying for social welfare benefit.
She was refused on the basis that if she were granted that allowance, she would no longer be dependent on her daughter, but would become an unreasonable burden on the Irish state.
Held:A Union citizen who is a worker has the right to equal treatment under Article 45(2) TFEU and Article 7(2).
Social advantages: include all benefits granted to national workers due to their status as workers or simply because they reside in the country.
Article 10
State cases
Right to education of children of workers
Esternech v deutch minister for education
Jobcenter Krefeld
Esternech v deutch minister for education
The Article 10 guarantee covers the right of children to have an education even where the working parent has returned to their member state of origin.
Jobcenter Krefeld
Article 10 includes the right to education: Implies a right of residence, since living in the country is necessary to attend school.
Therefore, children of migrant workers have an independent right to reside in the host Member State.
Children also have a right to care and support from their parents: the primary carer parent also has a right to reside in the host State.
That parent can also work in the host Member State.
The goal of Article 10 is to give practical effect to Article 45 by making it more attractive and realistic to move between Member States.
A child’s right to reside under Article 10 is independent: it does not depend on the parent maintaining their status as a worker.
Even if the parent loses their worker status, their right to stay as a carer remains due to the child’s rights.
NB: Children of EU workers, past or present, and their primary carer do not need to meet the usual conditions under Directive 2004/38 (sufficient resources, health insurance) to claim this right.
Not applicable to wholy internal
state case
Morson and Jhanhan
Morson and Jhanhan
Facts: Concerned Dutch nationals living and working in the Netherlands who wanted to bring their parents who were Suriamese,
Held: Dutch nationals working in the Netherlands have no cross-border elements.
Article 45 is not engaged because the situation is wholly internal.
3 key restricitons
Public policy
Public Security
Public health
Cit directive relevant provisions
Art 27
Art 28
Art 27
Requires all measures adopted on the basis of public policy or security will comply with the principle of proportionality.
Restrictions on the basis of public policy or security shall be based exclusively on the personal conduct of the person.
Note: Past convictions are not themselves grounds for taking such measures
Cannot be invoked to serve the economic ends of the member state concerned.
Art 28
Sets out the substantive and procedural protections for individuals subject to an expulsion order.
Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin
The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989
Public policy state cases
Van Duyne
Adoui
Ruttli
Olazababal
Van Duyne
State comment too
Facts: Concerned a Dutch woman who wanted to move from the Netherlands to the UK to work for the Church of Scientology.
The UK refused entry on the basis that it had a policy against working for the church.
Relevant Directive: Concerned restrictions on free movement; measures restricting free movement must be based exclusively on personal conduct.
The UK relied on the public policy exception.
Held: At the time of the case, the EU was still uncertain about the areas that it had competence over.
Member states still had the discretion to decide on what is to be considered socially harmful.
Craig and De Burca p.807:
There is an emphasis now on the need for equality of treatment between nationals of a member state and non-nationals engaging in the same activity,
If you cannot punish nationals for partaking in that activity then you should not be able to punish non-nationals. (See Conegate v HM Customs and Excise).
If the Van Duyn was brought in front of the CJEU now, it would have been decided differently
Adaoui
Concerned 2 prostitutes who were refused residence in Belgium based on public policy grounds.
Held: Cannot deny residence to non-nationals if nationals of the member state could engage in the same activity and not be punished in a similar way.
Ruttli
If you are going to punish non-nationals in a particular way, must be able to punish nationals in a similar way in regard to territorial restriction
Aolazabal
Held: In general, there needs to be equality of treatment between nationals and non-nationals.
One exception is, that you cannot expel a national from their own state.
Therefore, there can be some form of distinction between the fact that a state can expel non-nationals completely but cannot do that to nationals.
Crimninal convictions state cases
Rutli
Criminal proceedings against Calfa
Rutli
Held: Criminal convictions/past criminal conduct is not itself a reason to restrict someone’s free movement rights.
Must look at whether the person in question presents a danger to public policy/security.
Calfa
Facts: Concerned a Greek rule that expelled people for life if they were convicted of a certain drug-related offence.
Held: Cannot expel someone for their entire life because this is disproportionate.
There must be a continuous or present danger to justify a restriction.
Public security state cases
Gaydarov
Land Baden
Gaydarov
Facts: Concerned a Bulgarian national who was convicted of drug trafficking in Serbia.
He served his sentence and came back to Bulgaria.
Upon entry he was served a notice saying that he was prohibited from leaving the country and obtaining a passport.
Issue: Was the issue wholly internal?
Was this measure legitimate?
Held: Article 21 TFEU and Article 27 of the Citizenship Directive do not preclude national legislation that permits the restriction of the right of a national of a Member State to travel to another Member State in particular on the ground that he has been convicted of a criminal offence of narcotic drug trafficking in another State, provided that:
The personal conduct of that national constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society
The restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it
That measure is subject to effective judicial review permitting a determination of its legality as regards matters of fact and law in the light of the requirements of European Union law
Explanation:
The public policy/public security exception to Article 45 TFEU is narrowly construed.
Personal conduct must justify restricting free movement rights.
The conduct must pose a genuine, present, and sufficiently serious threat to society (e.g. drug trafficking, rape, murder, assault).
Past criminal conduct alone is not enough: there must be an ongoing threat.
Any restrictive measure must be proportionate to the goal pursued.
Authorities must show the measure doesn’t go further than necessary.
The decision must be open to meaningful judicial review.
Land Baden
Held: Clarified that expulsion decisions must be on imperative grounds of public security where the rights of a minor are at stake.
Public health state article
Article 29(1):
Member states cannot rely on public health grounds unless the disease has reached epidemic status from the World Health Organisation.
State case
Nordic Info
Noridc Info
Facts: Concerned Belgian COVID-19 travel restrictions.
Belgium banned non-essential travel to/from “red zone” countries due to public health risks.
Required testing and quarantine.
In July 2020, Sweden was briefly labelled a red zone.
As a result, NORDIC INFO, a Scandinavian travel agency, cancelled all trips and sought compensation.
Issue: Did the Belgian rules violate the guarantee to freedom of movement?
Held: A Member State can restrict travel to combat a pandemic like COVID-19.
Measures like travel bans, testing, and quarantine are allowed under Article 29(1) of Directive 2004/38 if:
The disease is infectious and widespread.
The measures are proportionate and non-discriminatory.
Summary
Two Key Aspects:
Economic Integration: Removing restrictions on movement encourages the flow of capital, services, and labour.
Social Integration: Facilitates the development of a shared European identity by allowing people to live and work across Member States.
Challenges to Free Movement in Recent Years:
Welfare Tourism Concerns:
Fears after the 2004–2007 EU expansions, especially in the UK and Ireland.
Ireland’s 2004 citizenship referendum removed automatic citizenship for children born in Ireland unless a parent was an Irish citizen or entitled to reside.
The 2008 Great Recession:
Frustration in Ireland over the EU’s handling of the crisis.
Other Member States criticized Ireland’s lack of financial regulation.
Brexit:
Reflected growing discontent with EU integration.
Marked a breakdown in key alliances.
COVID-19 Pandemic:
Competition for medical supplies showed cracks in solidarity.
Democratic Backsliding:
Concerns over the erosion of rule of law and democracy in some Member States.
Key Legal Principles:
The CJEU takes a broad and purposive approach to Article 45 TFEU:
Broad definition of “worker”.
Suspicious of any measures, discriminatory or not, that hinder free movement.
Strong protection of rights under Regulation 492/2011 and the Citizenship Directive.
Narrow interpretation of exceptions (public policy, security, and health) that justify restricting free movement.
