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Free movement of citizens Flashcards

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1
Q

Historical context: 5 stages

A
  1. ECC TREATY: Established free movement and residence for economic actors
  2. FREE MOVEMENT OF PERSONS DIRECTIVES: From 1990 limited rights were given to nationals who were non-economic actors
  3. TREATY OF MAASTRICHT 1993: Formally introduces Citizenship of the Union
  4. CITIZENS RIGHTS DIRECTIVE (CRD) 2004/38: From 30 April 2006 provided a legal framework for citizens to exercise their right to move and reside freely.
  5. TREATY OF LISBON: Introduces Art 3(2) TEU which introduced the notion of free movement of persons within the area of freedom, security and justice (AFSJ)
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2
Q

Treaty Provision: Prohibition of discrimination

A

Art 18 TFEU

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3
Q

Treaty Provision: Establishment of citizenship of the union in addition to national citizenship, MSs autonomy of granting nationality

A

Art 20(1) TFEU

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4
Q

Treaty Provision: Citizens shall enjoy the rights and be subject to the duties provided for in the Treaties

A

Art 20(2) TFEU

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5
Q

Treaty Provision: Right to move and reside freely within the territory

A

Art 21(1) TFEU

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6
Q

Treaty provisions: Free movement of workers and the self employed

A

Arts 45, 49, 56 TFEU

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7
Q

6 Key issues to consider

A
  1. The personal scope of union citizenship
  2. Categories of EUC
  3. Right of residence in the host MS
  4. Right to enjoy equal treatment
  5. Parallel rights of family members of EUCs
  6. Restrictions on the right of entry and residence
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8
Q

Micheletti

A

Q1: Personal scope of union citizenship: Art 20(1)

M dual national, Argentinian and Italian
Had never lived in Italy, moved to Spain.
Spain refused to recognise him as Italian as had a rule that only recognised the nationality of the citizen where he was habitually resident
CJEU held that this rule could not apply- had to recognise him as an EU citizen die to mutual recognition

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9
Q

Uercker & Jacquet (Personal scope of citizenship)

A

Q1: Personal scope of union citizenship:

EUCs themselves must exercise their free movement rights in order to activate the protection of free movement law

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10
Q

Baumbast (Personal scope)

A

Q1: Personal scope of union citizenship:

Art 21(1) TFEU Creates a directly effective right of free movement and residence for EUCs, derived from the EUC’s nationality of a MS

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11
Q

Rottman

A

Q1: Personal scope of union citizenship: Art 20 (enjoyment of EU rights)

Withdrawal of national citizenship is subject to the general principles of such as proportionality and fundamental rights, as this is the basis for acquiring the fundamental status of EU citizenship

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12
Q

Zambrano

A

Q1: Personal scope of union citizenship: Art 20 (enjoyment of EU rights)

If a TCN has dependant children who are EU citizens, the refusal of residence, work permits etc will have the effect of depriving citizens of the union of the genuine enjoyment of their rights as union citizens under art 20 as it must be assumed that the children must otherwise have to leave the EU with their parents

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13
Q

Singh

A

Q1: Personal scope of union citizenship: Right of Exit, Entry, Re-Entry

German national was entitled re-enter country with TCN husband in order to exercise her right to family life

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14
Q

De Cuyper

A

Q1: Personal scope of union citizenship: Right of Exit, Entry, Re-Entry

In order to get unemployment benefit, a belgian citizen had to be available for work in Belgium
This was held to be incompatible with the right of exit

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15
Q

Citizens Rights Directive

A

2004/38/EC

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16
Q

Rights of exit, entry and re-entry

A

Arts 4, 5 CRD

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17
Q

Provision setting out different categories of EUCs

A

Art 7(1) CRD

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18
Q

Provision: An EUC cannot be expelled simply for having recourse to the social assistance system

A

Art 14(3) CRD

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19
Q

Provision: entitlement to maintenance aid provided by the host MS for studies, including vocational training

A

Art 24(2) CRD

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20
Q

Provision: Conditions in which a worker/self employed person may achieve permanent residence status before completing the normal 5 year qualifying period

A

Art 17 CRD

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21
Q

Trojani

A

Q2 Categories of EUCs: Definition of a worker

Any person who pursues activities which are real and genuine
Performs services in return for remuneration
Employed workers must also be in a relationship of subordination

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22
Q

Vatsouras (Workers)

A

Q2 Categories of EUCs: Definition of a worker

CJEU leaves determination of whether there is an employment relationship to the national court

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23
Q

Provision: Circumstances in which a worker/CRD will retain their status once they are no longer working

A

Art 7(3) CRD

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24
Q

Antonissen

A

Q2 Categories of EUCs: Work seekers
Pre CRD

Work seekers can fall within the notion of a worker within art 45 TFEU, despite its wording only referring to workers moving to another MS to ‘accept offers of employment’
However they do not receive full rights of workers under reg 492/2011

(codified and revised by CRD)

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25
Q

Free movement of workers within the union regulation

A

492/2011

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26
Q

Collins (Categories of workers)

A

Q2 Categories of EUCs: Work seekers
Pre CRD

MS can require a real link between the applicant and the labour market of the MS before qualification for a job seeking benefit:
Must establish that the person concerned has, for a reasonable period, genuinely sought work in the MS in question
If can establish a real link, EUC is entitled to financial assistance intended to facilitate access to the labour market

(codified and revised by CRD)

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27
Q

Ioanndis

A

Q2 Categories of EUCs: Work seekers
Pre CRD

Real link test in Collins must be applied subject to the principle of proportionality

(codified and revised by CRD)

28
Q

Vatosouras (Work Seekers)

A

Q2 Categories of EUCs: Work seekers

The fact that an MS is not obliged to offer social assistance or student loans can be reconciled with the real link test in Collins as social assistance doesn’t include a job seeking benefit- this is concerned with labour market access rather than social assistance so has a link with Art 45.

29
Q

Provision: Students can be accompanied/ joined be family members but this does not include ‘depending direct relatives in the ascending line’ i.e parents, grandparents.

A

Art 7(4) CRD

30
Q

Provision: After completing their studies, ex-students can remain in the host MS as work seekers, or become workers/self employed, or otherwise survive until they require permanent residence

A

Art 14(2) CRD

31
Q

Types of people included in the residual category of non-economically active EUCs (Art 7(1)(b) CRD)

A

Retured people

Wealthy, non-economic free movers

32
Q

Baumbast (Categories of EUCs)

A

Q2 Categories of EUCs: Requirement for comprehensive health insurance

German national living in UK with family but working in Germany, did not receive any social benefits.
UK sought to expel him as his medical insurance policy required him to travel to Germany for non-emergency treatment
Held that the requirement not to become a burden on the state was subject to proportionality

33
Q

Relevant provisions: Right of residence in the host MS from entry to 3 months

A

Art 6 CRD: Only requirement is to hold a valid ID card or passport

Applies to EUCs, and TCN FMs ‘accompanying or joining them’

34
Q

Wijsenbeek

A

Q3 Right of residence in the host MS: Entry to 3 months

MSs are free to retain ID check to verify whether someone is an EU citizen at the border

35
Q

Oulane

A

Q3 Right of residence in the host MS: Entry to 3 months

Right of residence cannot be conditional on the possession of a passport
No further formalities can be required once a citizen has verified their status

36
Q

Relevant provisions: Right of residence in the host MS for more than 3 months

A

Art 7 CRD: employment categories of rights

Art 8 CRD: MS can require registration of EU citizens after 3 months residence

Arts 9-11 CRD: TCN FMs of EUCs must apply for a residence permit valid for 5 years from the date of issue

Art 25 CRD: Documents are evidence of the right of EU citizenship not a precondition for the exercise of that right

37
Q

Relevant provisions: Right of permanent residence

A

Regulation 492/2011: Introduced right

Art 16 CRD: ‘continuous legal residence of 5 years’ (Includes temporary absences not exceeding 6 months out of the year)
Can be lost after being away from host MS after more than 2 years

Art 17 CRD: : Shorter periods of qualification available for workers and the self-employed who are no longer working in the host MS and their FMs

38
Q

Lassal

A

Q3 Right of residence in the host MS: Permanent residence

If were resident in a host MS starting before 2006 when provision came into being, then can still claim for permanent residence

39
Q

Ziolkowski

A

Q3 Right of residence in the host MS: Permanent residence

Lassal applies even if MS has not been a member of the EU for 5 years

40
Q

Onuekwere

A

Q3 Right of residence in the host MS: Permanent residence

Periods in prison will interrupt the continuity of legal residence in the host MS
Justification: MS is entitled to take into account any issue of integration- the imposition of a prison sentence shows a non-compliance with the values expressed by the society of the host MS

41
Q

Provision: provisions of the CRD apply to family members of EUCs who accompany or join them

A

Art 3(1) CRD

42
Q

Metock (family members)

A

Q5: Parallel rights of family members of EUCs

FM can be EUC or TCN

43
Q

Provision: Definition of ‘family memnbers’

A

Art 2 CRD

44
Q

Rationale for the parallel rights of FMs

A

Market access- if EUC is prevented from enjoying normal family life may deter them from exercising their right of free movement

45
Q

Uecker and Jacquet (Rights of FMs)

A

Q5: Parallel rights of family members of EUCs

Family rights are DERIVATIVE of the EUC’s rights therefore:
There must be an EUC on which to hand FMs rights
Must be a link with EU law

46
Q

Diatta

A

Q5: Parallel rights of family members of EUCs

Full mutual recognition of marriage must apply
Spouse will be entitled to full rights even if separated but still married

47
Q

Provision: Basis for terminating rights if marriage is found to be one of convenience

A

Art 35 CRD

48
Q

Provision: Right of residence of a FM after the death or departure of an EUC from the host state

A

Art 12 CRD

49
Q

Provision: Right of residence for spouses who themselves are EUCs in the event of divorce

A

Art 13 CRD

50
Q

Provision: ‘Beneficiaries’

A

Art 3(2) CRD

FMs who do not come under any other heading but are:
Dependants
Members of the household
Must be personally cared for on serious health grounds

Limited obligation: MS must facilitate entry and residence
Have a duty to undertake an extensive examination of the personal circumstances’ of such people
Must justify any refusal of entry or residence.

Includes:
3(2)(b) A partner not covered by 2(2) with whom the EUC has a durable relationship, duly attested
Parents, grandparents of students

51
Q

Akrich

A

Q5: Parallel rights of family members of EUCs
The right to a normal family life pre CRD

Introduced a prior lawful residence requirement in another MS for a TCN spouse when they move to another MS in which the EUC has migrated

52
Q

Metock (Right to a normal family life)

A

Q5: Parallel rights of family members of EUCs
The right to a normal family life pre CRD

Expressly overruled Akrich as not compatible with the rights of EUCs and their FMs under the CRD
Restored an unconditional right of first entry for TCN FMs accompanying or joining an EUC in the host MS

53
Q

Provision: MS may restrict right of entry and residence of EUC and FMs on grounds of public policy, public security, public health.

A

Art 27 CRD

54
Q

O and O

MRAX

A

Q6: Restrictions: Public policy, public security, public health
Case law codified by art 27 CRD

May not expel someone simply because they posses a criminal record

Must not be invoked to serve economic ends

55
Q

Adoui and Coruaille

A

Q6: Restrictions: Public policy, public security, public health

Belgium sought to expel 2 women for prostitution
Was established that if they had been Belgian nationals there would be no criminal sanctions
Therefore could not be expelled, as exclusion measures may not be discriminatory

56
Q

Provisions: Safeguards against expulsion

A

Art 27: right of reentry into home ms, safeguards on checks of police records

Art 28 CRD: Contains considerations for the host MS in making the decision to expel
e.g age, health, family, economic circumstances, social integration
Additional protection for permanent residents

Art 30: Notofication of decision made and grounds

Art 32: duration of exclusion powers

57
Q

I

A

Q6: Restrictions: Public policy, public security, public health
Expulsion of someone with permanent residence on imperative grounds of public security

Italian man who had been living in Germany for 20 years,tried and convicted of offence of child abuse and rape.
Held he could be expelled
CJEU test: he remained a continuing threat both to the specific individual and other children.
Court would still need to satisfy itself on basis of points 1-4.

58
Q

Positive factors of free movement of citizens

A
  1. Enjoyment of the substance of rights conferred by the TFEU
  2. Guarantee of equal treatment in home and most MSs
  3. Promotion of idea of Europe without frontiers
    Speeds up market/political integration
  4. Facilitates family reunification
  5. Fills skills gaps in the employment market
59
Q

Negatice factors of free movement of citizens

A
  1. MS competence over nationality
  2. Pressure on national social security systems
  3. Fear of ‘benefit tourism’
  4. Maintenance of public services
  5. Loss of control of borders
  6. Concern over numbers
  7. Organised transnational crime
  8. Fear of ‘brain drain’
60
Q

Provision: Right to enjoy equal treatment within the scope of the treaty

A

Art 24(1) CRD

61
Q

Personal scope of the treaty

A

Q4: Right to enjoy equal treatment

Depends of different categories of EUC citizens proper to acquisition of permanent residence

62
Q

Martinez-Sala

A

Q4: Right to enjoy equal treatment:
Material scope of the treaty

If an EUC has already been authorised to reside in another MS, they are lawfully residing in the territory, and so become within the personal scope of the provisions of the treaty
An EUC lawfully resident in the territory of the host MS can rely on art 18 TFEU in all material situations which fall within the scope of union law.

63
Q

Collins (Right to equal treatment)

A

Q4: Right to enjoy equal treatment: Non-discriminatory restrictions caught within art 21

May be justified by ORPIs:

Measures are often capable of restriction on social solidarity grounds if they are:

  1. Based on clear criteria
  2. Known in advance
  3. Proportionate (degree of integration test)
64
Q

Bressol

A

Q4: Right to enjoy equal treatment: Non-discriminatory restrictions caught within art 21

May be justified by ORPIs:

Non-discriminatory limitation on places in medical schools based on residence requirement
Could be justified on grounds of public health protection if:
1. there was a genuine risk to the protection of public health in the host MS if long term residents of that MS find it more difficult to obtain places at medical schools
2. The measure was proportionate

65
Q

Requirements for justifications of restrictions

A
  1. Art 27: Grounds for public policy, public security, public health
  2. Exclusion measures may not be discriminatory
  3. Must be proportionate
  4. Must conform to safeguards
66
Q

ZZ

A
  1. Restrictions on right of residence
    Safeguards: Art 30 notification of decision and grounds

Notification is compatible provided the national court is satisfied that the essence of the decision has been communicated to the individual

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