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EU Law > Free Movement (Major Cases, Legislation) – Mainly Goods and People > Flashcards

Free Movement (Major Cases, Legislation) – Mainly Goods and People Flashcards

1
Q

Act: Rights of entry/residence for Union citizens + family

A

Directive 2004/38

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2
Q

Act: Right to equal treatment: workers

A

Regulation 492/2011

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3
Q

Act: Social security rights

A

Regulation 883/2004

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4
Q

Act: Covering services

A

Services Directive 2006/123

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5
Q

Act: Covering qualifications

A

Qualifications Directive 2005/36

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6
Q

Main case: selling arrangements v MEQRs

A

Keck [1993]

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7
Q

Main case: defining MEQR

A

Dassonville [1974]

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8
Q

Main case: justifying indistinctly applicable MEQRs

A

Cassis de Dijon [1979]

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9
Q

Act: Requirement if proposing new laws setting tech specifications

A

Technical Standards Directive 98/34

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10
Q

Main case: providing service vs establishment + defending indistinctly applicable restrictions on freedom of establishment / service provision

A

Gebhard [1995]

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11
Q

Main case: “services normally provided for remuneration” in Article 57 TFEU = only commercial activity

A

SPUC v Grogan [1991]

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12
Q

ECJ confirmed:
> Potential to hinder enough to be MEQR, even if doesn’t actually
> State-backed non-binding measures (e.g. ad campaign) can count

A

Buy Irish [1982]

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13
Q

German ban on using brand name as suggests medicinal = MEQR

A

Clinique [1994]

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14
Q

German ban on 10% extra ice-cream wrapper = MEQR

A

Mars [1995]

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15
Q

German ban on pharmacists advertising outside shop = mere selling arrangement

A

Huntermund [1993]

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16
Q

French ban on fuel ads on TV = mere selling arrangement

A

Leclerc [1995]

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17
Q

Swedish ban on alcohol magazine/TV/radio adverts = MEQR

A

Gourmet International [2001]

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18
Q

Austrian requirement van grocers/butcher/bakers also have permanent premises with local address = MEQR

A

Schutzverband [2000]

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19
Q

ECJ held definitely that Article 34 had no application to laws on opening hours

A

Punto Casa [1994]

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20
Q

Greek law saying baby milk can only be sold in pharmacies = mere selling arrangement

A

Baby Milk [1995]

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21
Q

Is the type of good covered by a harmonisation directive?

A

Can only justify on:

  1. Grounds specified by harmonisation directive itself
  2. permitted under

Article 114(4) TFEU: can maintain national law that already existed if can show truly necessary to satisfy:

> One of major needs set out in Article 36 (6 treaty exceptions)
To protect the environment / working environment

Article 114(5) TFEU: can only introduce new national law if can show truly necessary based on new scientific evidence relating to protection of environment / working environment

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22
Q

What are the 6 treaty exceptions which can be used to justify distinctly/indistinctly applicable MEQRs (or QRs)?

Where are they listed?

A

Article 36 TFEU

  1. Public morality
  2. Public policy
  3. Public security
  4. Public health
  5. Protecting national treasures
  6. Protecting industrial and commercial property

Additional from case law: environmental grounds

(States must always show a measure is proportionate)

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23
Q

What are the 2 Cassis principles?

A
  1. Rule of reason: indistinctly applicable measures can be justified if
    > Necessary (for rule at all + if rule proportionate)
    > For mandatory requirements of the state (e.g. effectiveness of fiscal supervision, protection of public health, fairness of commercial transactions, defence of the consumer)
  2. Principle of mutual recognition: you accept our products, we will accept yours
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24
Q

Main rights under Directive 2004/38

A

Article 4: Exit

(Citizen: ID card or passport // Family: passport)

Article 5: Entry

( Citizen: ID card or passport // Family: passport + maybe visa – state must give “every facility to obtain” ASAP + free of charge)

Article 6: Residence up to 3 months
> Applies to all Union citizens, whether or not pursuing economic/other activity (+ family accompanying or joining)

Article 7: Residence 3+ months
> Applies to Union citizens in following categories (+ family):
1. Workers and self-employed
2. People will sufficient resources to support themselves + sickness insurance
3. Students who declare have sufficient resources to support themselves during course + sickness insurance

(Registration with authorities may be required, resulting in issue of residence certificate)

Articles 16 + 17: Permanent residence
> Right arises after 5 years continuous legal residence in host state
> Articles 17 +18 grant to workers/self-employed (+ family) prior to 5 years sometimes – e.g. if retire or become incapable of work

(Citizen: apply for document certifying permanent residence // Family: apply for permanent residence card)

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25
Q

Expulsion = disproportionate sanction for failing to meet registration requirements

A

Royer [1976]

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26
Q

Directive 2004/38 definition of family

A

Article 2(2)

> Spouse / contracted legal partner (if host state recognises)
Direct descendants of either – if under 21 or dependent
Dependent parent/grandparents of either

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27
Q

Specific family rights under Directive 2004/38

A

Article 12: Death or departure of Union citizen
> Doesn’t cause loss of residence rights for non-citizen if lived in host state as family 1+ year
> Doesn’t cause loss of residence rights for non-citizen children + parents with custody, for as long as children enrolled at educational establishment in host state

Article 13: Divorce, annulment or termination of partnership – no loss of residence rights for non-citizen if:
> Marriage/partnership lasted 3+ years, including 1+ year in host state, prior to initiation divorce/annulment/termination
> Non-citizen has custody of citizen’s children
> Non-citizen has right of access to minor child (providing court ruled such access must be in host state)
> Caused by v difficult circumstances e.g domestic violence

Article 17(4): Grants permanent residence to family where worker/self-employed person died before obtaining (subject to conditions)

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28
Q

Definition of worker

A

Article 45 doesn’t define, clarified by case law

Performs services for another person, under the control of that person and receives remuneration

> Includes jobseekers
(NB: Directive 2004/38: unconditional 3 month residence + can’t expel citizens who entered looking for work if can show still looking and have genuine chance of being engaged)

> includes part time work as long as not on such small scale purely ancillary, and even if supplemented by other lawful means e.g. welfare

> Must be genuine economic activity – paid in kind counts, therapeutic work programme doesn’t

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29
Q

Living separately with intent to divorce still counts as spouse

A

Diatta [1985]

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30
Q

EU migrant worker has right to bring non-EU spouse back to home country

A

Surinder Singh [1992]

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31
Q

Grounds for exclusion and deportation

A

Treaty exceptions (is indistinctly applicable by definition) – 3 general derogations: public health / public security / public policy

Directive 2004/38 confirms grounds are treaty exceptions

Further specifications:
1. Can’t be used for economic ends
2. Must be proportionate
3. Must be based on individual conduct not personal characteristics
4. Can’t be only on grounds of previous criminal convictions – to justify, must show is big enough ongoing threat to public policy, security or health
5. If on public health grounds only diseases either
> “with epidemic potential” (defined by WHO)
> “the subjection of protection provisions applying to nationals of host state”
> Must be a right of appeal of review (usually right to use national court system to appeal against /judicially review decision)

32
Q

Additional protection against deportation for people already living in host state

A

Directive 2004/38 Article 28

1. Must take into account various factors:
> Age
> Health
> Family
> Economic situation
> Social/cultural integration
> Extent of links with home country
  1. Can’t usually deport EU citizens/family with permanent residence – only serious grounds of public policy/public security
  2. Even harder to deport EU citizen if lived in host state 10+ years / a minor – only imperative grounds of public security
    (Except if necessary for best interests of minor)
33
Q

Dutch national refused entry to UK to work for Scientology

ECJ” association with group can count as “personal conduct” + group activities don’t have to be illegal

A

Van Duyn [1974]

34
Q

ECJ: previous convictions not deportation grounds, but relevant if show present threat (propensity to reoffend)

Reference to “genuine and sufficiently serious threat” and “fundamental interests of society”

A

Bouchereau [1977]

35
Q

French prostitutes refused residence permits

ECJ: can’t refuse if no “repressive measures/other genuine measures to combat such conduct” in own nationals

A

Adoui and Cornuaille [1982]

36
Q

Using human rights to fight deportation

A

Carpenter [2002]

37
Q

Creating concept of “citizenship of the Union”

A

TFEU Article 20

Relevant articles created by TEU – effective from 1993

38
Q

Right of Union citizens to move and reside freely within territory of member states (so no longer linked to status of worker/self-employed

A

TFEU Article 21

Has direct effect (confirmed Baumbast [2002])

“Subject to further rules” – not defined, assumed to mean similar derogations to other entry/residence rights

39
Q

Right of Union citizens to stand in elections on same conditions as nationals

A 
TFEU
Article 22(1) – municipal elections
Article 22(2) – European Parliament elections
40
Q

Case using Article 21 where more specific residence rights had ceased

A

Baumbast [2002]

German came to UK self employed, then worker, then ceased working – sufficient resources but no health insurance

ECJ:
> Article 21 has direct effect – so must apply any limits/conditions in Treaty/Directives in line with proportionality
> Deportation disproportionate for not having sickness insurance, had sufficient resources so unlikely to become burden

41
Q

Case extending residence right to family not covered under Directive 2004/38

A

Zhu and Chen [2004]

Chinese gave birth to daughter in Belfast, under ROI law at time daughter automatic Irish citizen – both UK resident, had sufficient resources + sickness insurance

UK gov claim: neither qualifies for residence permits in UK or EU law

ECJ:
> daughter is EU citizen – under Article 21 + provisions in Directive 2004/38 precursor (persons with sufficient resources) has right to reside indefinitely
> Also apply to non-citizen mum as primary caregiver

Many see as significant development in use of Article 21 as:
> Mother was deliberately setting out to use EU law to acquire rights was no barrier to application of relevant EU law
> Article 21 confers important rights to Union citizens, can even extend to benefit non-citizens in some circumstances

42
Q

Using Article 21 as basis for prohibiting discrimination (2 cases)

A

Grzelczyk [2001] French student applied for Minimex in Belgium

Bidar [2005] French student living with Grandma in UK, rejected for student loan on grounds time in full-time education didn’t count as residence in UK for past few years

In both: disproportionality is key

43
Q

Rights Under Regulation 492/2011

C1, S1

A

Eligibility for Employment

Right to take available employment with same priority as nationals

National laws/regulations/admin acts/practices don’t apply:

  1. If limit applications, offers of employment or right to take up and pursue employment – especially measures which:
    > Require special recruitment procedure for foreign workers
    > Limit/restrict ads of vacancies in press or other medium
    > Require registration with employment offices
    > Subject to conditions not applied to nationals
    (Exception = concerns linguistic skills needed for job)
  2. EU citizens = nationals for purpose of
    > Rules on % of foreign workers in any undertaking/activity/region
    > Benefits granted to undertaking based on % national workers
    > Entitlement to same assistance from state employment offices
  3. Recruitment shouldn’t depend on discriminatory criteria – i.e. migrants shouldn’t be subject to different medical/vocational/other criteria
    (NB: once have job offer, may have to do vocational test if employer expressly requests when making offer)
44
Q

Rights Under Regulation 492/2011

C2, S2

A

Employment and Equality of Treatment

  1. Equal treatment to national workers, particularly concerning:
    > Remuneration
    > Dismissal
    > Reinstatement/re-employment if become unemployed
  2. Same social and tax / training / housing advantages
    > Equal access to vocational schools and retraining centres
    > Same housing rights/benefits as national workers e.g. home ownership, put name on housing lists
    > Cristini [1975] fare reduction cards for large families come under “social and tax advantages”
  3. Clause of individual/collective agreement is null + void insofar as lays down/authorises discriminatory conditions
  4. Equality in trade union membership and attached rights
    > Right to vote for and be eligible for admin/management positions
    (EXCEPTION: may be excluded from management of bodies governed by public law / holding office governed by public law)
    > Eligible for workers’ representative bodies

NB: doesn’t prevent states granting EU migrants more rights

45
Q

Family members of EU citizen with right of residence have right to take up employment/self-employment

A

Directive 2004/38

46
Q

Regulation 883/2004

A

Covers social security rights:
Basically gives EU migrant workers same rights as nationals
Contributions by worker (e.g. National Insurance in UK) taken into account for contribution-based benefits

47
Q

Justifying distinctly OR indistinctly applicable restrictions on free movement of workers (employment)

A

TFEU Treaty Exceptions

Article 45(3): contains the 3 general derogations – courts interpret narrowly
> Public policy
> Public security
> Public health

Article 45(4)
Rights from Article 56 don't apply to "employment in public service"
(No definition given, ECJ given narrow meaning: Commission v Belgium [1980]

To justify exception must always prove measure proportionate

48
Q

Justifying indistinctly applicable restrictions on free movement of workers (employment)

A

Cassis de Dijon [1979] criteria apply
1. Necessary
> Whether needed at all
> If proportionate

2. For mandatory requirement e.g.
> Effective fiscal supervision
> Protection of public health
> Fairness of commercial transactions
> Defence of consumer

Bosman [1995] confirmed Cassis applies to free movement of workers

49
Q

Case: ECJ definition/test of “employment in public service”

A

Article 45[4] – Rights from Article 45 don’t apply to “employment in public service”

Commission v Belgium [1980] defined:
> Only posts with “special relationship of allegiance to state”
> Establishes test:
a) “exercise of powers conferred by public law”
b) “safeguarding the general interests of the state”
(likely covers e.g. judges, police, senior civil servants)

50
Q

Example of indirectly discriminatory (indistinctly applicable) restriction on free movement of workers

A

Allue [1993]

Law foreign language teachers on 1-year contracts, other subjects can sign indefinite contracts

ECJ: ensuring sufficient funds to pay foreign language teaching assistants = legitimate aim, but disproportionate
(dismissing surplus teachers = more proportionate)

51
Q

Example of non-discriminatory (indistinctly applicable) restriction on free movement of workers

+ confirmed defences can be used by individuals accused of hindering free movement as well as states

A

Bosman [1995]

Confirmed Cassis applies to workers
ECJ: transfer fee = obstacle to free movement, can justify if
“Pursuing legitimate aim compatible with Treaty”
“Justified by pressing reasons of public interest”
As long as “does not go beyond what’s necessary”

52
Q

TFEU Article: bans restrictions on free movement for workers

A

Article 45

53
Q

TFEU Article: bans restrictions on free movement of goods

A

Article 34

54
Q

TFEU Article: bans restrictions on freedom of establishment

A

Article 49

55
Q

TFEU Article: bans restrictions on freedom to provide services

A

Article 56

56
Q

TFEU Article: definion of services

A

Article 57

57
Q

Services Directive 2006/123: Freedom of Establishment (Chapter III)

3 prohibited requirements

A
  1. Indirectly/directly discriminatory based on nationality or (if company) location registered office – in particular:
    > Nationality of provider, staff, shareholders, management, supervisory bodies
    > Requirement resident in territory
  2. Restrictions on establishment in several EU states / choice where to have principal establishment + form of establishment
  3. Obligation take out insurance from provider in host state
58
Q

Services Directive 2006/123: Freedom of Establishment (Chapter III)

8 requirements to be Evaluated

A
  1. Quantitative/territorial restrictions on activity (distance, population)
  2. Obligation provider takes a specific legal form
  3. Requirements relating to shareholding
  4. Qualifications provider (if not under Qualifications Directive)
  5. Ban on multiple establishments in territory of same state
  6. Min number employees
  7. Min or max tariffs must comply with
  8. Obligation supply other services jointly with service
59
Q

Services Directive 2006/123: Freedom of Establishment (Chapter III)

Justifying requirements to be evaluated

A

Must be:
> Non-discriminatory
> Necessary for “overriding reason relating to the public interest”
> Proportionate

(Similar to Cassis)

Reflect ECJ case law – additional duty that states send evaluation report to the Commission justifying requirements and intention to keep

60
Q

Services Directive 2006/123: Freedom of Establishment (Chapter III)

Justifying authorisation schemes

A

Must be:
> Non-discriminatory
> Necessary for “overriding reason relating to the public interest”
> Proportionate

(Similar to Cassis)

Additional conditions:

> Must be based on transparent criteria which preclude arbitrary decisions by competent authorities
Can’t duplicate comparable requirements from other EU states
Authorisation for entire state territory for unlimited duration – unless state can objectively justify a limitation

61
Q

Services Directive 2006/123: Freedom to Provide Services (Chapter IV)

Justifying any other requirements

A

Must be:
> Non-discriminatory
> Justified by reasons of public policy, public health, public security or protection of the environment
> Proportionate

(Beyond case law – distinctly applicable prohibited, indistinctly applicable can only be justified on general Treaty derogations + environment)

62
Q

Services Directive 2006/123: Freedom to Provide Services (Chapter IV)

Derogations limiting scope

A
  1. Doesn’t apply to:
    > Services of general economic interest (e.g. postal, utility)
    > Data processing
    > Shipment of waste
  2. Derogation on safety grounds possible on case-by-case basis
63
Q

Services Directive 2006/123: Freedom to Provide Services (Chapter IV)

4 prohibited requirements

A
  1. Must set up establishment in host state
  2. Must register with professional body in host state
  3. Ban on setting up certain form/type of infrastructure (e.g. offices or chamber) needed to supply services in question
  4. Contractual arrangements prevent/restrict by self-employed
64
Q

Services Directive 2006/123

Mutual assistance provisions

A

National authorities must cooperate to ensure effective supervision

When provider offers temp services:
> General rule – home state responsible for supervising under national law (may ask host state to carry out checks/controls)
> In limited cases where host state entitled to impose extra requirements – host state responsible for supervising them

65
Q

Services Directive 2006/123

Administrative simplification

A

> States have general duty examine + simplify admin procedures

> Must set up ‘points of single contact’ for service providers from other EU states to find relevant rules/procedures/formalities

> Must also ensure info available online + providers can complete any formalities electronically

66
Q

Case: what makes a body a court or tribunal for Article 267

A

Dorsch [1997]

ECJ laid out relevant factors to consider – whether body

  1. Established by law
  2. Permanent
  3. Has compulsory jurisdiction
  4. Procedure is inter partes (i.e. has hearings where all parties can be present and heard)
  5. Applies rules of law
  6. Independent

Not all factors necessary, sufficient most apply

67
Q

The ?????? criteria – whether court/tribunal should make Article 267 reference

A

CILFIT [1982]

The CILFIT criteria

Article 267 says court/tribunal must decide if decision on question of EU law is necessary to enable it to give a judgement – ECJ laid down guidelines on deciding if necessary

NOT necessary if one of following applies:
1. Where the question of interpretation of EU law raised before the national court isn’t relevant to the conclusion of the case
2. Where previous decisions of the ECJ have already dealt with the point of EU law in question
3. Where the correct application of EU law is so obvious as to leave no room for reasonable doubt on the manner in which the question raised is to be resolved, and the court is convinced the matter is equally obvious to the courts of other Member States and to the the ECJ
(assessed on the basis of characteristic features of EU Law and the particular difficulties to which its interpretation gives rise)

NB: if the ECJ has already ruled on a similar point of interpretation in a previous case it doesn’t preclude a reference, but it could be reason for a court to decide it isn’t necessary

(ECJ 2011 Information Note confirmed importance of CILFIT criteria)

68
Q

Case: ECJ confirmed court of mandatory jurisdictions = highest court of national system for particular case

A

Costa [1964]

69
Q

Exceptional situation: where a court of permissive jurisdiction is doubtful about the validity of a piece of EU law – must Article 267 refer to ECJ

A

Foto-frost [1987]

Information Note 2011

70
Q

Justifying restrictions on business mobility – outside the scope of Directive 2006/123

Distinctly applicable OR indistinctly applicable

A

Treaty Exceptions

Article 51
Not covered by Article 49 + 56 as concerns “exercise of official authority”
(construed narrowly – Reyners [2004] Belgian law only nationals can be lawyers = rejected)

Article 52
Contains the 3 general derogations:
> Public security
> Public health
> Public policy e.g. Omega [2004]

To justify exception must always prove measure proportionate

71
Q

Justifying restrictions on business mobility – outside the scope of Directive 2006/123

Distinctly applicable OR indistinctly applicable

A

Gebhard [1995]
(Slightly different wording Cassis/Bosman)

Can defend measures that actually hinder FoM on grounds:
1. Non-discriminatory (i.e. not directly discriminatory)
2. Justified by imperative requirements in the general interest
> Suitable for securing objective they pursue
> Doesn’t go beyond what’s necessary to obtain

Case law – ECJ often rules objective legitimate but measure disproportionate

72
Q

Test for providing services (Article 56) establishment (Article 49)

A

Gebhard [1995]

German lawyer est. Milan office, tried to use Lawyers Services Directive (only covered providing services)

ECJ ruled was established in Italy – test:

  1. Pursuing activity on a “stable and continuous” vs “temporary” basis
2. Four relevant factors:
> duration
> periodicity
> continuity
> regularity

NB: provider of services can equip with necessary infrastructure e.g. premises

73
Q

5 situations where Article 56 applies

A
  1. Move to state to provide services
  2. Move to state to provide services to nationals of home state
  3. Don’t move, provide by internet etc. – e.g. Alpine Investments [1995]
  4. Move state + wish to bring non-EU workers from home state – e.g. VanderElst [1994]
  5. Nationals travel to other state and receive services there
74
Q

Services Directive 2006/123: exclusions

A
  1. Relating to exercise of official authority
  2. Certain social security (social housing, Childcare, aid for persons in need)
  3. Taxation
  4. Temporary work agencies
  5. Notaries and bailiffs
  6. Private security
  7. Gambling
  8. Audiovisual services
  9. Non-economic services of general interest

Specific legislation:

  1. Financial (e.g. banking, insurance)
  2. Electronic communication
  3. Healthcare

Special treaty provisions:
13. Transport including ports (but covers some related e.g. removals, car rental, funeral services)

75
Q

Services Directive 2006/123: other provisions narrowing scope

A
  1. Doesn’t affect criminal or labour law
  2. If conflicts with specific provision of EU law (e.g. Qualifications Directive) specific provision prevails
  3. Must be element of service provision – manufacturing isn’t but many ancillary activities (e.g. retail, install/maintain, after sale services) covered
76
Q

Test for “employment in public service” established in

Commission v Belgium [1980]

A

Only posts with “special relationship of allegiance to state”

Test:

  1. “exercise of powers conferred by public law”
  2. “safeguarding the general interests of the state”

(likely covers e.g. judges, police, senior civil servants)

EU Law (2 decks)

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