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EU law > FMOW > Flashcards

FMOW Flashcards

1
Q

Hoesktra

A

Worker is an EU concept and not determined by national employment law

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2
Q

Worker definition

A

“effective and genuine work”

- excludes activités on such a small scale as to be regarded MARGINALLY and ANCILLARY

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3
Q

Meeusen v Hoofddirectie

A

spouse can be employed by spouse as a worker

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4
Q

Levin

A

part time, low pay (less than min.wage) and no economic independence (used saving)

STILL WORKER
workers can supplement income with private sources

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5
Q

Kempf

A

part time, less than min, wage, and applied for social assistance

still WORKER

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6
Q

Steymann

A

paid in kind (food and accommodation)

STILL WORKER - as long as work would conventionally be paid for with money

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7
Q

ex p. antonissen

A

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
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8
Q

Collins

A

job seekers treated differently

- no entitlement to tax and social advantages

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9
Q

Lawrie-Blum

A

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
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10
Q

Motive of worker? (General rule)

A

Irrelevant as long as work is genuine and not marginal

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11
Q

Motive of worker (exception)

A

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
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12
Q

Saunders

A

If no exercise of FM then it is in principle outside the ambit of treaty rules

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13
Q

Terhoeve

A

if C employed in another MS and returned to home MS = exception

can’t be discriminated against for working in another MS

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14
Q

Marsman v Rosskamp

A

National rules confined legal protection against dismissal for seriously disabled workers to NATIONALS

  • obviously direct discrimination
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15
Q

Com v Italy (security work)

A

private security work only legally carried out by italian security firms employing italian nationals

  • DIRECT DISCRMINATION
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16
Q

Com v French Republic

A

French law required proportion of crew to be French nationality

  • DIRECT DISCRIMINATION
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17
Q

Schiebel

A

Austria rule - company can only trade military weapons if managing partner was Austrian

DIRECT DISCRIMINATION

  • no justification
  • not proportionate or necessary
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18
Q

O’Flynn

A

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

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19
Q

Groener

A

there may be justifications for indirect discrimination

  • here Dutch teacher failed Irish language test
  • test is justified
  • Irish language not to die
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20
Q

Calliope Schoning-Kougebetapoulou

A

doctor experience in another MS does not count towards experience for calculating salary on experience

  • not justified
  • manifestly worked to detriment of migrant workers
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21
Q

Bosman

A

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

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22
Q

Volker Graf

A

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
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23
Q

Weigel

A

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
24
Q

Com v Belgium (public service exception)

A

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

25
Q

Rules for public service exception

A

1) involve participation in exercise of powers conferred by public law
2) entail duties designed to safeguard general interests of the state

26
Q

What doesn’t count as public service

A
  • 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
27
Q

Bouchereau

A

threat for public policy/security/health must affect fundamental interest of sovereignty (not just break law)

28
Q

Calfa

A

even if previous criminal convictions, host MS cannot deport EU national just for preventative purposes

29
Q

Adoui & Carnaille

A

workers conduct is not sufficiently serious if host state doesn’t adopt genuine and effective measures to combat same conduct by its own nationals

30
Q

Sotgiu

A

indirect discrimination can be justified on objective grounds

31
Q

Orfanopoulous

A

MS must consider

  • length of time resided
  • age
  • state of health
  • family and economic situation
  • extent of his/her links with origin MS
32
Q

Gravier

A

french student strip cartoon = counted as vocational (so worker)

33
Q

Blaizot

A

Uni education can be vocational unless course just improves general knowledge rather than prepare for occupation

34
Q

Grzelcyzk

A

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
35
Q

Michelletti & Others

A

EU citizenship wholly determined by national law

36
Q

Rottman

A

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
37
Q

Zambrano

A

national measures cannot deprive EU citizens “genuine enjoyment of the substance of the rights conferred by virtue of EU citizenship

38
Q

Martinez-Sala

A

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
39
Q

D’Hoop

A

Belgium worker wanted tide over allowance

- don’t restrict FMOW!

40
Q

Pusa

A

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)
41
Q

Hagan & Tas-Hagen

A

restriction based approach

  • dissuade Belgium nationals moving
  • justification isn’t proportionate
  • better ways of showing connection than better residence requirements
42
Q

Bidar

A

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
43
Q

Lebon

A

before EU citizenship = no benefits

equal treatment for social advantages is reserved for workers

44
Q

Collins

A

EU citizenship gives jobseekers rights to social advantages

- art.45 should be interpreted in light of art.18 because of EU Citizenship

45
Q

Vatsouras

A

confirmed Collins (overruled Lebon)

  • art.45(2) scope is widened to include job-seekers
46
Q

Trojani

A

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

47
Q

Dano

A

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)

48
Q

Alimanovic

A

applied Dano (2015)

49
Q

Carpenter

A

focused on family life rights

  • cannot deport wife
  • not proportionate to goal of public order and safety
50
Q

Chen, Baumbast

A

ECJ held EU citizens of child age are allowed their non-EU parents to remain with them

51
Q

Metock

A

(reversed Aldrich)

- non-EU spouses can accompany and join EU spouse even if never lawfully resident in home MS

52
Q

Ruiz Zambrano (case itself)

A

non-eu parents could stay with EU citizen children

53
Q

McCarthy

A

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)
54
Q

Garcia Avello

A

Serious inconvenience professionally and personally for Belgium not to allow dual-nationality children to have double-barrow surnames (Spanish)

55
Q

Dereci

A

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

56
Q

Iida

A

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

EU law (6 decks)

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