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EU Law > Free Movement of People > Flashcards

Free Movement of People Flashcards

1
Q

Article 45

A

Guarantees Free Movement of Workers

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2
Q

The effects of Article 45

A
  1. Secures free movement of workers
  2. Abolition of discrimination based on nationality of workers
  3. Entails certain rights of workers subject to limitations
  4. The provision of this article does not apply to public service
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3
Q

Rights of workers under Art 45

A
  • To accept offers of employment actually made
  • To move freely through MS territory for this purpose.
  • To stay in a MS for the purposes of employment
  • To remain in a MS subject to conditions
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4
Q

Applicability of Article 45

A

Used to be only vertically effective (Walrave)
Could be enacted against orgainsations (Bosman)
Extended to direct effect on individuals, which can be invoked by any EU citizen in any domestic court (Angonese)

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5
Q

Cross border movement is defined broadly by the court

A

Working for an embassy of a member state provides a sufficiently close link with the Union
(Boukhalfa)

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6
Q

Being a worker requires

A

An ‘effective and genuine’ activity, not a marginal and ancillary one
(Levin)

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7
Q

Examples of effective activities of workers

A
  • Chambermaids (levin)
  • Footballers (Bosman)
  • part-time music teacher whose income was supplemented by the state (Kempf)
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8
Q

Examples of non-effective activities of workers

A

Bettray

- working as part of his drug-rehabilitation programme

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9
Q

Three part test for the definition of a worker

A

Lawrie-Blum

  1. Work of Economic value
  2. For and under the direction of another
  3. In return for remuneration
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10
Q

Economic value test is fact specific and for the domestic courts to decide.

A

Bernini

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11
Q

Supplementation of income with state assistance is considered adequate remuneration

A

Kempf

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12
Q

Being given accommodation in a religious order in return for housekeeping and chores was considered adequate remuneration

A

Steymann

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13
Q

Art. 7 of Regulation 429/2001

A

concerns.
- access to employment
- working conditions
- social and tax advantages

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14
Q

Job seekers under Art. 45

A
  • Does not have the full range of rights extended to workers
  • Their rights are limited to entry and residence for the purpose of seeking work
    Antonissen
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15
Q

Job seekers under Directive 2004/8

A

They cannot be deported if they are continuing to seek employment and have a genuine chance of getting it.
- even after a reasonable time (6m in the UK) has elapsed, providing they have provided evidence (Antonissen)

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16
Q

The rights to social advantages for workers do not apply to those seeking work after a reasonable period of time has elapsed

A

Lebon

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17
Q

Workers, the self-employed, students and the retired are now all classed as ‘citizens’ Directive 2004/38

A

There is no requirement to be economically active.

All EU citizens have freedom of movement within the EU

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18
Q

Restrictions on Free Movement

A

Three Types
- Direct
Indirect
Indistinctly applicable measures

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19
Q

Direct Discrimination

A

Any measure targeting a MS national specifically; the criteria being the nationality of the person
(Levin)

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20
Q

Indirect Discrimination

A

Not targeted as such but might be felt by a MS national

Groener

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21
Q

Indistinctly applicable measures

A

Measures which are indiscriminate towards domestic and MS national, but which are still capable of impeding freedom of movement for workers
(Bosman)

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22
Q

Justification for Direct Discrimination

A

Workers can be excluded on the grounds of public police, security and health (Rutili)
Individuals must be a ‘genuine, present and sufficiently serious threat’
(Bosignore)
- exclusions must be based solely on the conduct of the individual (Art. 27)

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23
Q

Any restrictions on workers rights must be:

A
  1. based on the individuals conduct
  2. have the same requirements for domestic and MS citizens
  3. Not arbitrary
  4. Not in breach of human rights
  5. sufficiently serious past criminal convictions
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24
Q

Direct restrictions of workers rights must be based on the individuals conduct

A

van Duyn

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25
Q

Direct restrictions of workers rights have to be based on the same conduct requirements for domestic citizens as well as for MS workers

A

Adoui and Cornuaille

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26
Q

Direct restrictions of workers rights must not be arbitrary

A

Bosignore

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27
Q

Direct restrictions of workers rights must not be in breach of human rights

A

Rutili

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28
Q

Direct restrictions of workers rights: past criminal convictions only justify deportation if they are sufficiently serious, so that it would be proportionate to punish by exclusion

A 
Terror offences
(Astrid Proll)
c.f. 
Minor Drug offences
(Donatela Calfa)
29
Q

Public service restrictions under Art. 45

A
  • Public service has a narrow meaning (sotgui)
  • covers posts dealing with ‘the exercise of power conferred by public law’ where there is a ‘responsibility for safeguarding the general interest of the state’ (Commission v Belgium (public employees case))
30
Q

The meaning of public service does not include

A
  • Nurses in the public sector (Commission v France (nurses))

- Trainee School Teachers

31
Q

Restriction under Public policy interests

A
  • Such measures have to be proportionate (Groener)

- Have to be a legitimate aim compatible with the treaty and justified by a pressing issue of public interest (Kraneman)

32
Q

Rights for non-economically Active Citizens

A

Art. 20 - the notion of EU citizenship
Art. 18 - the principle of non-discrimination of the basis of nationality
Art. 21 - substantive rights on the ability to move and reside freely in MS’s

33
Q

Only need to be a legal resident in the other member state ot be able to claim EU citizens rights

34
Q

EU citizenship was destined to become the fundamental status of nationals of member states.

35
Q

Directive 2004/38

A
  • codified the existing law.

- covers both EU nationals and his/her family members

36
Q

Family members are defined as:

A

Art 2: Directive 2004/ 38

  • Spouse
  • Registered partner (if recognised by the host MS; Netherlands v Reed)
  • Direct decedents under 21
  • Direct dependent direct descendants of an age
  • dependent direct relatives in the ascending line
  • other dependent family members
  • any partner with whom a union citizen has a ‘durable relationship’
37
Q

EU citizens in possession of a valid ID and their non-Eu family members have a right of residence up to 3 months

A

Art 6: Directive 2004/38

Provided they do not become an unreasonable burden on the host member state

38
Q

Certain EU citizens have a right of residence for more than 3 months

A

Art 7: Directive 2004/38

a. workers or self employed
b. citizens who have sufficient resources for themselves and family members
c. citizens who are enrolled in a public educational establishment
d. Family members accompanying or joining a union citizen and who satisfy the above conditions.

39
Q

Divorce/ separation and the right to reside

A

Under Art. 13 D2004/38

non-EU national can stay after the end of a marriage or registered partnership if certain conditions are met

40
Q

Conditions for staying after a separation

A

Article 13: D 2004/ 38
Any one of:
1. a 3 year relationship that includes 1 year in the host MS
2. Partner has custody of children
3. Circumstances warrant it (domestic violence)
4. court has ordered access to children of the relationship

41
Q

Once an EU citizen has resided in the country for 5 years they have the right to remain as long as they do not burden the MS

42
Q

Member State entitlement to confer state support during the first 3 months

A

Art. 24: D2004/38

  • Educational Aid (Bidar)
  • Child raising allowance (Martinez-sala)
  • Minimum assistance allowance (Baumbast)
  • Jobseekers allowance (if they can prove they are genuinely seeking work (Vatsouras)
43
Q

State assistance can be denied if the MS national is economically inactive and does not have sufficient resources

A

Dano
But will be based on the financial situation of each individual, to stop MS nationals from becoming an unreasonable burden (Art 7)
(Alimanovic)

44
Q

You do not have to have a residency requirement in order to obtain rights under EU law

45
Q

Parents children who are citizens as a result of birth cannot be deported as this is a breach of the right to a family

46
Q

Denyment of citizenship to partners who do not live together is not a breach of rights

47
Q

Once installed in a Member State, workers and family members have certain rights

A

Art. 45

  • Non-discrimination
  • Social/ Tax advantages
  • Educational rights
  • retirement rights
48
Q

Direct discrimination is a breach or rights unless justified under Art. 45

A

Commission v France (French Seamen)

49
Q

Indirect discrimination is a breach of rights unless objectively justified and proportionate

50
Q

Non-discriminatory rules may be outlawed if they affect free movement rights

51
Q

Workers and their families are entitled to those benefits ‘which are granted to workers primarily because of their objective status as workers’ (Art. 7)

A

Ministere Public v Evan

52
Q

It is not relevant whether the advantages are connected with the worker’s employment contract

53
Q

The following are examples of social and tax advantages that someone may claim

A
  • Funeral expenses (O’Flynn)
  • Disability Allowance (Inzirllo)
  • Family Fare reduction card (Cristini)
  • Minimum Income allowance (Hoeckx)
  • Discretionary childbirth loans (Reina)
54
Q

If a worker becomes economically inactive the host MS’s can deny him any social/ tax advantges

A

Kaczamarek

55
Q

Worker have the right to access training in vocational schools or retraining centres under the same conditions as nationals

A

Art. 7
Brown
- vocational schools do not include university

56
Q

If worker’s children reside in the host MS’s they have the right to education, apprenticeship and vocational training under the same conditions as nationals.

A

This includes a wider approach than workers.
- university and general measures to facilitate education attendance, such as grants
(Casagrande)

57
Q

Retirement rights

A

Workers who have reached the retirement age specified by the MS are entitled to reside if they have resided in that state for the last 3 years and worked for the last 1.

58
Q

Loss of citizenship

A

Roltman - could be an EU issue
Tjebbes - purely a MS issue

Begum - in the context of ISIS

59
Q

Cannot withhold state assistance on the basis of discriminatory requirements

A

Gryzelczyk

60
Q

Can only trigger Directive 2004/38 rights if

A

you have been forced to leave the EU, not a MS

Dereci

61
Q

Detention is illegal

62
Q

Baumbast

A

Tried to deport due to insufficient health insurance

63
Q

MS need to recognise similar qualifications

64
Q

Citizens are entitled to child raising allowance within the first 3 months

A

Martinez-sala

65
Q
  • Educational Aid (Bidar)
66
Q

Child Raising Allowance

A

Martinez-sala

67
Q

Minimum Assistance Allowance

68
Q

Jobseekers Allowance

A

If they can prove that they are genuinely seeking work

- Vatsouras

EU Law (4 decks)

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