FMOW Flashcards
Hoesktra
Worker is an EU concept and not determined by national employment law
Worker definition
“effective and genuine work”
- excludes activités on such a small scale as to be regarded MARGINALLY and ANCILLARY
Meeusen v Hoofddirectie
spouse can be employed by spouse as a worker
Levin
part time, low pay (less than min.wage) and no economic independence (used saving)
STILL WORKER
workers can supplement income with private sources
Kempf
part time, less than min, wage, and applied for social assistance
still WORKER
Steymann
paid in kind (food and accommodation)
STILL WORKER - as long as work would conventionally be paid for with money
ex p. antonissen
art.45 - incl job seekers
- but no indefinite right
- this case said 6 months (after, possible if “genuine chance of being engaged”)
- citizen directive shortened it to 3 months
Collins
job seekers treated differently
- no entitlement to tax and social advantages
Lawrie-Blum
1) “remuneration”
2) “economic value”
3) “under direction of a person”
here preparatory service stage of teacher training - service was of economic value for pay
- less than normal salary but that’s irrelevant
Motive of worker? (General rule)
Irrelevant as long as work is genuine and not marginal
Motive of worker (exception)
Bettray
- purpose was crucial to ECJ decision
- main purpose: rehabilitation
- no genuine economic need
Trojani
- service needs to be “capable of being regarded as forming part of normal labour market”
- this was reintegration but person was unable to work for a long time
Saunders
If no exercise of FM then it is in principle outside the ambit of treaty rules
Terhoeve
if C employed in another MS and returned to home MS = exception
can’t be discriminated against for working in another MS
Marsman v Rosskamp
National rules confined legal protection against dismissal for seriously disabled workers to NATIONALS
- obviously direct discrimination
Com v Italy (security work)
private security work only legally carried out by italian security firms employing italian nationals
- DIRECT DISCRMINATION
Com v French Republic
French law required proportion of crew to be French nationality
- DIRECT DISCRIMINATION
Schiebel
Austria rule - company can only trade military weapons if managing partner was Austrian
DIRECT DISCRIMINATION
- no justification
- not proportionate or necessary
O’Flynn
indirect discrimination - show:
1) not necessary to prove national measure affects higher proportion of foreign workers
2) just show measure was “intrinsically liable” to affect migrant workers more than nationals
Groener
there may be justifications for indirect discrimination
- here Dutch teacher failed Irish language test
- test is justified
- Irish language not to die
Calliope Schoning-Kougebetapoulou
doctor experience in another MS does not count towards experience for calculating salary on experience
- not justified
- manifestly worked to detriment of migrant workers
Bosman
obstacles to access to employment market (even if not discriminatory) can count as restricting FMOW
- football transfer system
- Belgium FC prevented footballer securing employment in France FC (system applies equally to players internally, nationality irrelevant)
BREACH - OBSTACLE TO FMOW
Volker Graf
RULE: compensation on termination of employment not available to workers who voluntarily ended employment
ECJ reiterated Bosman
- but no breach on facts
- dependent on hypothetical and future event
- too uncertain and indirect to breach art.45
Weigel
negative tax consequences for individual who moves from one MS to another (host MS = higher taxes)
- NO breach; no discrimination
- does not place individual under any greater disadvantage than those already resident
Com v Belgium (public service exception)
art.45(4) permits MS to reserve for nationals posts which would REQUIRE:
A SPECIFIC BOND OF ALLEGIANCE AND MUTUALITY OF RIGHTS AND DUTIES BETWEEN state and employee
Rules for public service exception
1) involve participation in exercise of powers conferred by public law
2) entail duties designed to safeguard general interests of the state
What doesn’t count as public service
- nurse in public hospital
- trainee teacher
- foreign language assistant
- researchers at national research centre
- posts in teaching, research, TMT and gas
- posts in private security
Bouchereau
threat for public policy/security/health must affect fundamental interest of sovereignty (not just break law)
Calfa
even if previous criminal convictions, host MS cannot deport EU national just for preventative purposes
Adoui & Carnaille
workers conduct is not sufficiently serious if host state doesn’t adopt genuine and effective measures to combat same conduct by its own nationals
Sotgiu
indirect discrimination can be justified on objective grounds
Orfanopoulous
MS must consider
- length of time resided
- age
- state of health
- family and economic situation
- extent of his/her links with origin MS
Gravier
french student strip cartoon = counted as vocational (so worker)
Blaizot
Uni education can be vocational unless course just improves general knowledge rather than prepare for occupation
Grzelcyzk
EU citizenship is a “fundamental status” of the nationals of MS
- french student used art.18 to claim benefits
- use art.18 in conjunction with art.21
- just can’t be “unreasonable” burden
Michelletti & Others
EU citizenship wholly determined by national law
Rottman
MS cannot lay down conditions for loss of nationality fully (because it affects EU citizenship)
- conditions are justified if PROPORTIONATE RESPONSE TO THE LEGITIMATE INTEREST of a state
- in protecting special relationship of solidarity and good faith between MS and its nationals
Zambrano
national measures cannot deprive EU citizens “genuine enjoyment of the substance of the rights conferred by virtue of EU citizenship
Martinez-Sala
Citizen of EU lawfully residing in a MS can rely on art.18 in situations falling within scope of community law
- not a worker but she got child-raising allowance
D’Hoop
Belgium worker wanted tide over allowance
- don’t restrict FMOW!
Pusa
Restriction-based approach to discrimination
- no unjustified burden may be imposed on mover (no restrictions)
- if restricted, that’s enough (no need to show discrimination)
Hagan & Tas-Hagen
restriction based approach
- dissuade Belgium nationals moving
- justification isn’t proportionate
- better ways of showing connection than better residence requirements
Bidar
art.18 - no discrimination, read in conjunction with art.21 = benefits
- no discrimination must give benefits
- but only if degree of integration (UK’s settled is not proportionate)
- can’t be unreasonable burden either
Lebon
before EU citizenship = no benefits
equal treatment for social advantages is reserved for workers
Collins
EU citizenship gives jobseekers rights to social advantages
- art.45 should be interpreted in light of art.18 because of EU Citizenship
Vatsouras
confirmed Collins (overruled Lebon)
- art.45(2) scope is widened to include job-seekers
Trojani
obiter - if person lawfully resides in MS they can benefit from art.18 (social assistance falls within art.18)
so non-economically active can get benefits
Dano
art.18 cannot be referred to in isolation - limited by Dir.2004/38
(EU citizens only get benefits if they comply with Dir.2004/38)
Alimanovic
applied Dano (2015)
Carpenter
focused on family life rights
- cannot deport wife
- not proportionate to goal of public order and safety
Chen, Baumbast
ECJ held EU citizens of child age are allowed their non-EU parents to remain with them
Metock
(reversed Aldrich)
- non-EU spouses can accompany and join EU spouse even if never lawfully resident in home MS
Ruiz Zambrano (case itself)
non-eu parents could stay with EU citizen children
McCarthy
non-eu husband couldn’t stay with EU citizen who hasn’t exercised FMOG rights
- not covered by Dir.2004/38
- and not impeding art.20 rights (if husband moves, she doesn’t have to move out of EU)
Garcia Avello
Serious inconvenience professionally and personally for Belgium not to allow dual-nationality children to have double-barrow surnames (Spanish)
Dereci
1 non-eu parent, EU children have no right to keep that parent in that MS
- not denial for enjoyment of rights
- because children won’t have to leave EU
“Genuine enjoyment” limited
- EU citizen has to be made to leave “in fact” out of the EU
Iida
limited Ruiz and rights of non-EU family members
- didn’t mention family right
- just said removing C would not deny child EU citizen right
