Free movement of Persons

Question 1

C-224/01 Köbler v Austria [2003]

internal situation -

Answer 1

Citizen of a MS may invoke it against the MS of his/her nationality if she/he has already exercised free movement

An Austrian national relying free movement of workers against Austria bc the State refused to take into account his work experience in another MS

Question 2

C-415/93 Bosman [1995] ECR I-4921

market access approach

Answer 2

Held: Used the market access approach the transfer system developed by national and transnational football associations was found to be in breach of Article 45. The fact that the transfer system applied equally to players moving from one club to another within a Member State as to players moving between states, and that a player’s nationality was entirely irrelevant, did not prevent the system from breaching Article 45. ⇒ The ECJ held that in the absence of any sufficiently convincing public-interest justification for the rule, it was contrary to Article 45

Facts: The system required a football club, which sought to engage a player whose contract with another club had come to an end, to pay money, often substantial, to the latter club. Bosman, who had been employed by a Belgian football club, was effectively prevented from securing employment with a French club.

Question 3

C-281/98 Angonese [2000] ECR I-4139

free movement of workers

Should Article 45 bind only the public authorities or should it also bind private parties?

Answer 3

*”the fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in compliance with the obligations thus laid down (see Case 43/75 Defrenne v Sabena [1976] ECR 455, paragraph 31)” (para 34).

*Such considerations must, a fortiori, be applicable to Article 48 of the Treaty, which lays down a fundamental freedom and which constitutes a specific application of the general prohibition of discrimination contained in Article [18 TFEU] (para 35)

*Persons not resident in the Bolzano province have little chance of acquiring the certificate

*Since most residents in the province are Italian nationals, the requirement places nationals of other Member States at a disadvantage

*Requirement was disproportionate because it prohibited proof of bilingualism by any other means

*The Court relied on the text of Article 45(2) TFEU, the principle of equality, and the principle of effectiveness

*Note that Mr Angonese could rely on Article 45 even though he was an Italian national

A private bank in the Italian province of Bolzano imposed as a recruitment condition the possession of a certificate of bilingualism, which replicated a condition that previously existed for access to the public service. The certificate was issued by the authorities of Bolzano and could only be obtained by taking examinations in the territory of that province.

Question 4

Case 66/85 Lawrie-Blum [1986] ECR 2121

definition of worker

she was held to be a worker by the courts

Answer 4

“The essential feature of an employment relationship…is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration”.

The claimant was a British national who passed the German state examination for the profession of teacher at a gymnasium but was refused admission as a trainee teacher
Under German law, teachers are part of the civil service, which is restricted to German nationals
The claimant argued that this was incompatible with the free movement of workers under Article 45 TFEU (ex Article 48 EEC Treaty)
The national court was of the opinion that trainee teachers were temporary civil servants and thus came within the exception of ‘public service’ under Article 45(4) TFEU

Question 5

Case C-188/00 Kurz [2002] ECR I-10691

definition of worker

Answer 5

The area of employment, whether the employment is of a public or a private law nature, the level of productivity of the worker, and the origin of the funds from which the worker is paid are irrelevant.

Question 6

Case 53/81 Levin [1982] ECR 1025.

definition of worker

Answer 6

The concept of worker is to be defined by EU law and not by reference to national law covers:

“the pursuit of effective and genuine economic activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary”.
It covers part time workers and cannot be made dependent on earning the minimum wage specified by host State legislation

the applicant worked part-time as a chambermaid

Question 7

Case 196/87 Steymann [1989] ECR 6159

definiton of worker

Answer 7

The court said that there is a remuneration (a quid pro quo) = he supplies his services

(plumber in religious community) : moved to the Netherlands and would to the plumbing.

Question 8

Case 344/87 Bettray [1989] ECR 1621

definition of a worker

Answer 8

not a genuine supply and demand situation. the objective of the work undertaken was the rehabilitation

“works” in the Netherlands as part of a drug rehabilitation procedure. The work is paid and supervised.

Question 9

C-357/89 Raulin [1992]

definition of worker

Answer 9

Held: left for the national court to decide. Whilst part time work was not excluded from the field of application of the rules on freedom of movement for workers, only the pursuit of effective and genuine activities was covered, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary

Facts: The applicant was a French national who settled in the Netherlands and managed to secure an ‘‘on-call contract’’
during which she completed 60 hours as a waitress over a period of 3 weeks. After applying and failing to be granted a residence permit in the Netherlands, she contended that she was protected as a worker under Art. 45 TFEU.

Question 10

Case C-344/95 Commission v Belgium [1997] ECR I-1035;

codified in article 14(4)(b) of the Citizenship directive

Answer 10

The host State has no power to provide for automatic expulsion after 3 months. No expulsion can take place as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged:

Question 11

Saint Prix, C-507/12

Answer 11

The list in article 7(3) of the directive is not an exhaustive one

(a woman who gave up work, or looking for work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of worker)

Question 12

*C-237/94 O’Flynn v Adjudication Office [1996] ECR I-2617

restrictions - indirect discrimination

nowcodified in art 3(1) of the Workers’ regulation

Answer 12

ECJ : disadvantage to migrant workers. Conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or the great majority of those affected are migrant workers, where they are indistinctly applicable but can be more easily satisfied by national workers than by migrant workers or where there is a risk that they may operate to the particular detriment of migrant workers.

*It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by national law.

=> there is no available justification, the allowance does not depend on distance but on a set amount of money

(funeral payment sought by an Irish migrant worker in the UK to conduct burial of family member in Ireland; refused on the ground that burial would take place outside UK): he’s being discriminated on grounds of residence.

Question 13

Case C-419/92 Scholz [1994] ECR I-505

indirect discrimination

Answer 13

periods of equivalent employment completed in home State must be taken into account

Question 14

Case C-379/87 Groener [1989] ECR 3967

free movement of workers - recruitement

Answer 14

language requirements can usually be justifiedwhen they are undertaken in order to promote the use of the national language and protect national identity provided they are non discriminatory and proportionate.

A Dutch woman, Miss Anita Groener, was refused a permanent teaching post at a Dublin design college. She did not speak Irish. She argued this was a restriction on her right to free movement of workers under TFEU article 45.

Question 15

Case 207/78 Ministere Public v Even [1979] ECR 2019:

definition of social advantages

Advantage need not be financial: Case 59/85 Netherlands v Reed [1986] ECR 12 ( in that case the court also held that spouse was confined to married ppl)
but the MS cannot refuse it solely bc the worker comes from another member state (Case 65/81 Reina [1982] ECR I-817)

Answer 15

Social advantages include benefits “which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community”

Question 16

Family members are also covered:

Case 32/75 Christini v SNCF [1975] ECR 1085

– Case 261/83 Castelli v ONPTS [1984] ECR 3199

Answer 16

• reduced fares on the railways : every worker had the right to reduced ticket = Article 7 of Regulation 1612/68 [now 492/2011] applied to all social and tax advantages, whether or not attached to the contract of employment.
• Old people’s minimum pension -

Cristini, an Italian national living in France and the widow of an Italian migrant worker, was refused a fare reduction card for large families, which her husband had previously claimed from French Railways (SNCF), on grounds of nationality. SNCF argued that the card was not a ‘social advantage’ because that term applied only to advantages attached to worker status.

Question 17

Case C-212/05 Hartmann [2007] ECR I-6303

Answer 17

ECJ: Any national of a MS irrespective of his place of residence and his nationality, who has exercised the right to freedom of movement and has been employed in a MS other than that of his residence is a worker (para 17)

*A child raising allowance is a social advantage

*Making the granting of the allowance conditional on residence in national territory works to the disadvantage of nationals from other MSs

*Difference in treatment was not objectively justified

German national working in Germany living in Austria was refused child raising allowance by German authorities because not resident there; residence criterion was indirectly discriminatory
Mr H was a worker within the meaning of Art 45

Question 18

Case C-287/05 Hendrix [2007] ECR I-6909:

social advantages

Answer 18

ECJ: This is a social advantage and the refusal could be disproportionate but it was not on the facts

*Reverses standard of territoriality of social security benefits

Facts: Dutch national working in the Netherlands refused disability benefit upon moving his residence to Belgium ;he relied on article 45.

Question 19

*Case 316/85 Lebon [1987]:.

social advantages - job seeker

see Collins

Answer 19

the Court had held that equal treatment with regard to social and tax advantages applies only to workers not those who move in search of employment. Thus, a job seeker was not covered by Article 7(2) Reg 492/2011

*Is a job seeker’s allowance a social advantage?

Question 20

Case C-138/02 Collins [2004] ECR I-2703,

.

Answer 20

para 63:

In view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article [45(2)] of the Treaty – which expresses the fundamental principle of equal treatment, guaranteed by Article [18] of the Treaty – a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State.
= Thus, a job seeker’s allowance is a social advantage covered by the principle of equal treatment as provided in Article 45(2) TFEU in the light of Article 18 and Union citizenship

Facts: Collins, who had dual Irish and American nationality, had come to the UK to look for work. His application for jobseeker’s allowance was refused on the grounds that he was not habitually resident in the UK and was not a ‘worker’ under [EU] law.

Question 21

Cases C-22 & C-23/08 Vatsouras [2009] ECR I-4585:

social benefits

Answer 21

Benefits intended to facilitate access to the labour market are social advantages. They are therefore covered by Art 7(2) and can be available to job seekers BUT Member States may impose conditions

*Member States may justify a residence requirement: Vatsouras, paras 38-39:

[38] It is … legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State

[39] The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question
=> Vatsouras reduces the scope of Article 24(2) of Directive 2004/38 which, in derogation to the principle of equal treatment states that Member shall not be obliged to confer entitlement to social assistance during the first three months of residence …

NB: Note interaction between Treaty provisions and statutory provisions

Question 22

*C-279/93 Schumacker 1995 I-00225

*C-527/06 Renneberg [2008] ECR I-7735:

free movement of workers

Answer 22

ECJ = In cases relating to taxation of the income of natural persons, the situation of residents and the situation of nonresidents in a given Member State are not generally comparable, since there are objective differences between them, both from the point of view of the source of the
income and from the point of view of their ability to pay tax or the possibility of taking account of their personal and family circumstances (see
Renneberg paragraph 59).
However, the Court has made it clear that, in the case of a tax advantage which is not available to a non-resident, a difference in treatment as between the two categories of taxpayer may constitute discrimination for the purposes of the FEU Treaty
where there is no objective difference between them such as to justify different treatment ( Renneberg, paragraph 60).

held for rennberg

Renneberg: *Dutch tax authorities refused to a Dutch citizen employed in the Netherlands who resided in Belgium deduction of ‘negative income’ arising from his residential property in Belgium (i.e. difference between mortgage payments and rental income)

Question 23

C-673/16 Coman EU:C:2018:385:

spouse - directive 2004/38

Para 45: ‘The obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and… falls within the competence of the Member States. Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law.

Answer 23

• the term ‘spouse’ within the meaning of Directive 2004/38 is gender-neutral and may therefore cover same-sex spouses

see also VMA: a refusal to issue a birth certificate to an homosexual couple’s child was a breach of article 20 and 21 tfeu.

Question 24

Ex. C-370/90 Surinder Singh [1992] ECR I-4288;

free movemnt of persons - wholly internal ?

A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.

Answer 24

A national of a Member State who has exercised rights of free movement may derive EU rights against his/her Member State of origin.

=> The immigration status of his/her family members may thus depend not on national law but on EU law. This may benefit third country citizens who are spouses of EU nationals:

=> he was entitled to stay in the UK

Singh was an Indian citizen. He had married a British citizen, and the two had resided for a time in Germany before returning to live in the UK. After they returned to the UK the couple divorced, leading to the UK government cancelling his leave to remain. He stayed and eventually the UK government began procedures to remove him from the UK. Singh then took the case to the European Court of Justice citing EU free movement rules. Under EU law [today, Art 3(1) of the Citizens’ Rights Directive], a Union citizen has the right to move to a Member State other than that of his nationality, and has the right to bring certain family members, including his non-EU national spouse, with him when he does so.

Question 25

C-456/12 O & B

free movement - derive rights

AG Sharpston urges the CJEU:

‘to take the opportunity afforded by these two references to give clear and structured guidance as to the circumstances in which the third country national family member of an EU citizen who is residing in his home Member State but who is exercising his rights of free movement can claim a derived right of residence in the home Member State under EU law.’

Answer 25

CJEU holds that Directive 2004/38 does not establish a residence right for third-country family members of an EU citizen in his home Member State. The Court infers this from both the wording of the Directive (which refers to ‘another Member State’) and the aim of the Directive (‘facilitating and strengthening the right to move and reside’).

However, the Court considers that, in the circumstances of Case C-456/12, residence rights may be derived from Article 21(1) TFEU. The reason is that an EU citizen could be discouraged from moving to another Member State if he could not, on return to his home Member State, continue the family life he established in the host Member State. (cf.Singh and Eind) which concerned obstacles to the free movement of workers.

(para 51) Article 21(1) TFEU can only be relied on ‘where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State’. EU citizen must have lawfully resided in the host Member State for more than three months (in accordance with Article 7 of Directive 2004/38). Shorter periods of residence by the EU citizen in the host Member State (in accordance with Article 6 of Directive 2004/38) do not establish residence rights for his family members.

The Netherlands nationals in Case C-456/12 had in the past resided in another Member State;he question arose whether their family members (third-country nationals) could derive a right of residence in the Netherlands from Directive 2004/38 and Article 21(1) TFEU.

Question 26

The right to reentry and the derivative rights arising for family members are not dependent on the EU national returning to his/her Member State of origin having employment there (Eind, C-291/05)

Answer 26

see also Lounes ( rights derived from article 21(1)) as exercised Treaty Rights by moving to and residing in a host member state (other than that of which s/he is a national) has then acquired the nationality of the host member state while retaining his/her nationality of origin; and several years later marries a third-country national with whom s/he resides in that member state
the third country-national is eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by the Free Movement Directive.

Question 27

C-378/12 Onuekwere

permanent residence

Answer 27

Periods spent in prison do not count towards the five year period to gain the right of permanent residence

Question 28

Case 293/83 Gravier [1985] ECR 593:

students

note that :

*Vocational training includes university studies leading directly to a professional qualification or providing the academic knowledge for the pursuit of an occupation: Case 24/86 Blaizot [1988] ECR 379

*The principle of equal treatment applies also to admission qualifications: Case C-147/03 Commission v Austria [2005] ECR I-5969

Answer 28

University fees fall within the scope of Article 18(1) TFEU = they have to be equal for every UE citizen. Participates to integration especially for EU youth.

However, according to Directive 2004/38, Member States are not obliged to provide maintenance grants and student loans to persons other than workers, the self-employed, and their families (Article 24(2)). T

Question 29

Joined Cases C-22 & C-23/08 Vatsouras [2009] ECR I-4585

social advantages - non economically active citizen

Answer 29

Benefits intended to facilitate access to the labour market are social advantages. They must therefore be available to migrant job seekers BUT Member States may impose conditions:
Member States may justify a residence requirement ( paras 38-39):

‘38 It is … legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State

39 The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question’

= interprets strictly Article 24(2) which states that the host Member State ‘shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b)’

: The applicants were both Greek nationals who entered Germany in order to work. Both had been granted a social benefit from the relevant authority (ARGE), and both had their entitlement suspended after it had been granted

Question 30

C-140/12Brey[2013]ECLI:EU:C:2013:565

note : But change in the tide (Risk of ‘benefit tourism’ but according to statistics it is still negligible)

*Case C‑333/13 Dano, 11.11.2014 ECLI:EU:C:2014:2358

*Case C‑67/14 Alimanovic, EU:C:2015:597
= However, in Alimanovic (Case C-67/14), although the Court does not expressly overturn the Saint Prix judgment it appears to make it easier for Member States to justify refusal of benefits. The case concerns a Swedish woman and her daughter who had worked in Germany briefly before losing their jobs. The mother and daughter did not fall within Article 7(3) as former workers and so would need to be considered as first- time jobseekers (see below).

= A Union citizen can claim equal treatment in relation to social benefits only if her residence in the host State complies with the residence conditions of the Citizenship Directive, i.e. she falls within one of the categories of beneficiaries provided therein.

= Less emphasis on citizenship and primary law + Less reliance on proportionality

Answer 30

Held: He did not fall in any of the categories of worker defined in Article 7 of Directive 2004/38

*Member States are entitled to condition the entitlement of migrants to social benefits on their fulfilling domestic requirements for lawful residence.

*However, those requirements must comply with EU law.

*The requirement imposed by Austria for lawful residence was that the migrant must, as soon as the initial unconditional three-month period of residence provided in Article 6 of Directive 2004/38 has expired, have sufficient resources so as not to apply for a specific social benefit.

*The CJEU held that, while eligibility for a particular social assistance benefit could provide an indication that an individual may lack sufficient resources, the mere fact that a national receives that social benefit is insufficient in itself to prove that he constitutes such a burden.

German national receiving an invalidity pension in Germany moved with his wife to Austria where he was refused a special noncontributory benefit, a form of social assistance, on the ground that his pension was too low and therefore he did not have minimum financial resources to establish lawful residence.

Question 31

149/79 Commission v Belgium [1980] ECR 3881

public service

NB: But Member States may not invoke Article 45(4) to discriminate in relation to conditions of employment: Case 152/73 Sotgiu [1974] ECR 153

Answer 31

access to jobs that pertain to the exercise of powers conferred by public law, and entail duties designed to safeguard the general interests of the State may be restricted = posts that require ‘aspecific bond of allegiance and mutuality of rights and duties between state and employee.’

Question 32

C- 200/02- Chen :

eu citizenship

Answer 32

The ECJ: held that there is free movement =>
The Court of Justice held that Art. 18(1) EC (now Art. 20(1) TFEU) and Directive 90/364/EEC conferred on Catherine—an EU citizen covered by medical insurance and cared for by her mother, a third-country national with sufficient resources to ensure that her daughter would not become a financial burden on the state—a directly effective right to movement and residence under Community law. The same provisions consequently conferred on Mrs Chen, as Catherine’s primary carer, the right to reside with Catherine in the UK. the beneficiary(baby) has Irish nationality. You don’t need to be aware of your rights to exercise them + For the purposes of the Directive, the resources did not have to be possessed by the minor EU citizen, but could be provided by a family member.

25 By virtue of Article 17(1) EC [Article 20(1) TFEU], every person holding the nationality of a Member State is a citizen of the Union. Union citizenship is destined to be the fundamental status of nationals of the Member States (see, in particular, Baumbast and R, paragraph 82).

26 As regards the right to reside in the territory of the Member States provided for in Article 18(1) EC [Article 21(1) TFEU], it must be observed that that right is granted directly to every citizen of the Union by a clear and precise provision of the Treaty. Purely as a national of a Member State, and therefore as a citizen of the Union, Catherine is entitled to rely on Article 18(1) EC [Article 21(1) TFEU]

goes to Ireland to give birth to avoid the One-child policy in China. The children automatically gets the Irish nationality. Wants to bring the child to UK.

The British authorities claim that you cannot exercise free movement if you are not aware of it

Question 33

C-85/96 Martinez Sala [1998] ECR I-2691

citizenship as an autonomous source of rights

(citizenship served as the gateway for the application of Article 18 TFEU to non economically active EU national legally resident in the host State)

Answer 33

= So long as an EU citizen is lawfully resident in the host State, she is entitled to equal treatment with Member State nationals in relation to benefits that fall within the scope of the EU Treaties even if she was not economically active. This right was derived from Articles 18 and 20 TFEU

= Spanish national resident in Germany was employed there and was subsequently in receipt of social assistance. The issue was whether she was eligible for a child raising allowance.

Question 34

*C-456/02 Trojani (2004):

note : in Vatrsouras: Introduction of EU citizenship led to a broader interpretation of Article 45(2) TFEU so as to include non discriminatory access to benefits intended to facilitate access to employment, such as a job seekers allowance, in the host state (cf Dano)

Answer 34

The Court left the national court to decide whether that work was real and genuine, by ascertaining whether the services performed were part of the ‘normal labour market’. This could involve consideration of the status and practices of the hostel, the content of the reintegration programme and the nature and detail of the work.
as long as a person is lawfully resident in the host State under itThe Court left the national court to decide whether that work was real and genuine, by ascertaining whether the services performed were part of the ‘normal labour market’. This could involve consideration of the status and practices of the hostel, the content of the reintegration programme and the nature and detail of the work.

Mr Trojani, a French national, resided in Belgium at a variety of camp sites and a youth hostel before being given room and board by the Salvation Army in one of their hostels—in exchange for doing a variety of odd jobs for 30 hours a week, which also resulted in him being given some pocket money. Mr Trojani applied for a Belgian ‘minimum subsistence’ allowance on the grounds that he in theory owed the Salvation Army 400 euros a month for his room and board. The Belgian authorities rejected his application, arguing that he was not a ‘worker’ under EU law, and thus not entitled to the benefit—or indeed toresde here.

Question 35

‘dorman eu competence ?’

*Case C-135/08 Rottmann [2010] ECR I-1449: ‘dormant EU competence’

citizenship as a free-standing source of rights

Answer 35

The Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law. Before deciding whether to withdraw its nationality granted by naturalization a Member State must assess whether withdrawal is compatible with EU law since it will result in the loss of Union citizenship

Austria national obtained German nationality by naturalization as a result of which he lost his nationality of origin. German authorities sought to revoke his new nationality on the ground that it had been obtained by deception.

Question 36

Case C-34/09 Zambrano

elevates citizenship,as a free stranding source of rights

cf. C-434/09 mcCarthy case : Art. 21 not applicable when never exercised free movement.
McCarthy was a dual Irish/British national born in the UK who had never worked or been self employed in the UK or anywhere else in the EU and relied on State Benefits. She was married to a Jamaican national with no leave to remain in the UK. They had applied for a residence permit for him on the basis of his status as the spouse of an EU national. Heard shortly after Zambrano, it dealt with similar issues. Contrary to the decision in Zambrano, the Court found that Ms McCarthy and her spouse could not rely on EU law as she had never exercised a right of free movement, having not lived elsewhere in Europe.
The Court said that the decision by the UK authorities not to grant Mr McCarthy a residence permit did not have the effect of depriving Mrs McCarthy of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, nor of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU.81 The Court also said that, by contrast with the case of Ruiz Zambrano, the national measure did not have the effect of obliging Mrs McCarthy, an EU national, to leave the territory of the European Union

Answer 36

= Article 20 precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status

*This may give rise to a derived right of residence of a third country national who is the primary carer of an EU citizen

=> Art. 20 TFEU should be interpreted as meaning that where a third-country national has dependent children who are EU citizens and who reside in their Member State of nationality, that Member State cannot require the third-country national to obtain a work permit or deny them a right of residence

NB: The right of the third country primary carer is purely derived from the right of the EU citizen minor. It is not an autonomous right

Couple Colombian citizens fled the civil war and seeks asylum in Belgium. Meanwhile, the mother gives birth to a child. If you don’t give the residence permit => they will need to leave the EU

Question 37

*Case C-256/11 Dereci, judgment of 15 November 2011

citizenship - genuine enjoyment test

see also :
*Joined Cases C-356 & C-357/11 O, S & L, 6 December 2012
= Article 20 TFEU does not preclude the possibility to deny a residence permit on the basis of family reunification in the situation described in the question, provided that such refusal does not entail a denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union for the child who is a Union citizen (notably the effect that the Union citizen would have to leave the territory of the European Union + regard the fundamental rights

*Case C-86/12 Alokpa & Moudoulou, 10.10.13: togolese national gave birth to French citizens in Luxembourg.
The Court of Justice ruled that Article 21 TFEU and the Directive 2004/38 grant Mrs Alokpa and her children a right to reside in the host Member State if the children are nationals of another Member State and if the parent is the minors’ primary carer (here the Court cited the previous case Zhu and Chen). The Court therefore held that the mother and her sons could continue to live in Luxembourg under the Directive.

However, this is not the surprising part of the decision. It really gets interesting once the CJEU turns to the application of Article 20 TFEU. The Court determined that if Article 21 did not apply, it would have to consider whether due to the refusal of Mrs Alokpa’s residence permit, her children would be obliged to leave the territory of the EU altogether; and thus be denied the genuine enjoyment of the substance of their EU rights. The Court concluded, following the Opinion of AG Mengozzi, that being forced to leave Luxembourg would not result in an obligation to leave the whole territory of the EU, as the children were French nationals. Mrs Alokpa therefore has the right to reside in France as the sole caregiver of minors. And thus, the refusal by the Luxembourg authorities does not constitute a deprivation of the genuine of enjoyment of the boys’ EU rights.

Answer 37

The mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.

Third country nationals who were married to, or children of, Austrian citizens applied for residence permits to live in Austria with their family members.

Question 38

*Cases 304/14 CS

citizenship

Answer 38

ECJ = in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of the third-country carer, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.

What if the carer is convicted of a criminal offence? Under the Zambrano formula she should have a right under the Zambrano formula.

Question 39

C-165/14 Rendón Marín, 13.9.2016; EU:C:2016:675

citizenship - criminal conviction

Answer 39

*He could have a derived right of residence:

in relation to his daughter (with Polish nationality) from Article 21 TFEU and the citizenship directive (since there is a cross-border element) = Free movement

in relation to his son from Zambrano (since there is no cross-border element) = Zambrano rights arising from citizenship

However, criminal record could defeat the above derived right

The right of the third country primary carer is purely derived from the right of the EU citizen minor.
Colombian national, sole carer of his two children, a daughter having Polish nationality and a son having Spanish nationality, refused residence permit in Spain on grounds of his criminal record.

Question 40

RH, C-836/18 (2020):

citizenship - sufficient resources

see also Case C-133/15 Chavez-Vilchez

Answer 40

= the assessment of an exception to a derived right of residence flowing from Article 20 TFEU must take account of the right to respect for private and family life, as laid down in Article 7 of the Charter

= the obligation imposed on a Union citizen to have sufficient resources for him or herself and his or her family member who is a third-country national, is such as to ‘constitute an impairment of the effective enjoyment of the essential rights deriving from the status of Union citizen which would be disproportionate in relation to the objective pursued by such a means test, namely to preserve the public finances of the Member State concerned’ and undermine the effectiveness of Article 20 TFEU if it results in that citizen having to leave the territory of the European Union as a whole and, by reason of the existence of a relationship of dependency between that national and the Union citizen, the latter is, in fact, obliged to accompany him or her and, consequently, also to leave the territory of the European Union.

Moroccan national family member of Spanish citizen refused residence permit in Spain on the ground that the Spanish spouse did not have, for him or herself and his or her spouse, sufficient resources not to become a burden on the national social assistance system

Question 41

Chavez-Vilchez

Zambrano formula

Answer 41

*Key criterion for the Zambrano test: whether there exists a relationship of dependency between the third country national and the EU citizen who is a family member such that, if no residence is granted to the third country national, the Union citizen will be compelled ‘in practice’ to leave the territory of the Union as a whole

*as part of assessing whether the EU child is dependent on the third-country national parent, the competent authorities must take account of the right to respect for family life under Article 7 of the Charter which must be read in conjunction with the obligation to take into consideration the best interests of the child as recognised in Article 24(2) of the Charter

concerned a number of cases where a third country national sought social assistance and child benefit as the carer of a Dutch child. None of them had a valid residence permit, however no deportation measures were taken against any of them. The children had received their nationality through their fathers. Thus, in all cases, the minor had a TCN mother and an EU citizen father. Seven out of the eight minor EU citizens had never made use of their EU free movement rights, i.e. had never left the Netherlands. Children benefits and social assistance applications were denied.

Question 42

C‑82/16KA

dependency test - citizenship - diervied rights

Last but not least, the K.A. judgment also provides for important guidelines on the application of Article 5 of the Return Directive. The Court emphasized that, before adopting a return decision, Member States must always consider the details of the TCN’s family life, unless these details could have been provided earlier. The EU Return Directive, once more, needs to be interpreted in the light of the Charter on Fundamental Rights

Answer 42

'’a refusal to grant a right of residence to a TCN can undermine the effectiveness of the Union citizen if there exists a relationship of dependency between the TCN and the Union citizen of such a nature that it would lead to the Union citizen being compelled to leave the territory of the EU.’’ => Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a TCN solely on the basis of an existing entry ban against TCN + must be assessed on case-by-case basis
* For adults, derived rights of residence are only conceivable in exceptional cases, where any form of separation of the TCN and the member of his family on whom he or she is dependent is not possible.
* As to children, the following criteria must be taken into account: The age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the EU citizen parent and to the TCN parent, and the risks which the separation from the letter might entail for the child’s equilibrium. Economic reasons are generally not sufficient.

seven third country nationals (TCN) residing in Belgium were all ordered to leave and banned from entering Belgium, some on grounds of a threat to public policy. Thereafter, the TCN filed applications for a residence permit in Belgium, based on their family relations with a Belgian citizen (some argued they were dependent descendants of a Belgian citizen, others were parent of a minor child in Belgium or a lawfully cohabiting partner in a stable relationship with a Belgian citizen). The competent Belgian authorities refused to examine their applications for family reunification based on the existing entry bans. Under Belgian law, an entry ban in force cannot be extinguished or suspended unless an application for its withdrawal or suspension is lodged from outside Belgium. It is also noteworthy that the Belgian citizens with whom the TCN claimed to have family relations have never exercised their right to freedom of movement and establishment

Question 43

Jebbes and Others (C‑221/17)

Union v State Nationality

Answer 43

*Held: EU law does not preclude the loss of the nationality of a Member State and, consequently, that of citizenship of the Union where the genuine link between the person concerned and that Member State is durably interrupted.

‘The loss of the nationality of a Member State by operation of law would be inconsistent with the principle of proportionality if the relevant national rules did not permit at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law.’ (para 41)

*Under Dutch Law an adult loses nationality if he or she is a national of another country and has had his or her principal residence outside the European Union for an uninterrupted period of 10 years.

Question 44

Case C-209/03 Danny Bidar [2005] ECR I-2119

Answer 44

Assistance, whether in the form of subsidised loans or of grants, provided to students lawfully resident in the host Member State to cover their maintenance costs falls within the scope of application of the Treaty for the purposes of the prohibition of discrimination laid down in the first paragraph of Article 12 EC. That provision must be interpreted as precluding national legislation which grants students the right to such assistance only if they are settled in the host Member State.

Danny Bidar, was French, and lived with his grandmother in the UK from August 1998, with his mother, who had cancer and died. He attended the local secondary school, and began uni in September 2001. He received assistance with tuition fees (followingGravier v City of Liège), but his application for a student loan was refused on the ground that he did not have ‘settled’ status

Question 45

Clean Car Auto Services v. Landeshauptmann Von Wien (Austria)
Case C-350/96, [1998] ECR I-2521

employers can rely on art 45 TFEU

Answer 45

Requirement that nationals of other states must reside in state in order to be appointed a manager constitutes discrimination based on nationality under TFEU 45.

Here the law applies without regard to the nationality of the person to be appointed as manager. Court says that national rules under with a distinction is drawn on basis of residence are liable to operate to the detriment of nationals of other member states.-Court says the residence requirement would be okay if based on objective criteria independent of nationality of employees, and proportionate to a legitimate aim pursued by national law.

Austrian Trade Code requires legal entities to have manager resident in Austria.
-P applied to be registered, application was rejected b/c manager was a resident of Berlin at the time, although he was seeking to live in Austria.

Question 46

C-333/13 Dano [2014]ECLI:EU:C:2014:2358

social benefits - economically inactive citizen- art 18 TFEU

Furthermore, the Court held that the Charter of Fundamental Rights did not have a bearing on the case as when Germany set out in national law the conditions for granting such benefits, it was not implementing EU law.

Answer 46

Held: Controversial ruling : national law in not only the only requirement, citizenshi directive is also important

NB: AG Wathelet advised that Ms Dano should not be entitled to social assistance. 131. ‘It serves to prevent persons exercising their right to free movement without intending to integrate themselves from becoming a burden on the social assistance system… In other words, it serves to prevent abuse and a certain form of ‘benefit tourism’.’

The Court of Justice ruled that Ms Dano, as an economically inactive EU citizen without sufficient resources to support herself, failed to fulfil the requirements set out in Art. 7(1)(b) of Directive 2004/38/EC for legal residence. As such, she could not invoke non-discrimination under the Treaties, was not entitled to equal treatment with nationals of the host Member State, and the German authorities could lawfully deny her non-contributory benefits

Ms Dano and her son were both Romanian nationals living in Germany. In July 2011, Ms Dano had obtained a residence certificate for EU nationals from the local authorities, which was of unlimited duration and stated 27 June 2011 as her date of entry to Germany. Ms Dano and her son were living with, and supported by, Ms Dano’s sister, in Leipzig. The German authorities paid Ms Dano certain monthly benefits (child benefit and an advance on maintenance payments for her son). Ms Dano had not worked in Germany and was not seeking work.

In September 2011 and January 2012, Ms Dano made two unsuccessful applications for benefits. Her objections to the latter decision were dismissed. In July 2012, Ms Dano and her son brought proceedings against Jobcenter Leipzig, challenging its latter decision refusing to grant the pair benefits available under German law—

Question 47

Case 292/89 Antonissen [1991] ECR I-745

art. 45 - job seeker

Answer 47

those who are actively seeking work do not have the full status of a worker, but are nonetheless covered by Article 45. Instantiates the ECJ’s purposive approach.

Antonissen migrated to the UK to find work but did not do so successfully after three years
He was caught for dealing drugs and was subject to a deportation order
He argued that deportation would breach his right to free movement under Article 45 TFEU (then Article 48 EEC Treaty)
Under a UK provision, a person would no longer be a ‘worker’ within the meaning of Article 45 TFEU if he has failed to find employment six months after entry

Question 48

Case 152-73 Giovanni Maria Sotgiu v Deutsche Bundespost

discrimination on conditions of employment

Discriminatory conditions of employment infringe the free movement provisions (Sotgiu v Deutsche Bundespost (Case 152/73)). ‘Public service’ is an EU concept. Its meaning is not to be determined by Member States (Sotgiu, Commission v Belgium).

Answer 48

THe taking into consideration, as a criterion for the grant of a separation allowance, of the fact that a worker has his residence in the territory of another member state may, according to the circumstances, constitute discrimination forbidden by article 7 ( 1 ) and ( 4 ) of regulation no 1612/68 . this is not the case however if the scheme relating to such an allowance takes account of objective differences in the situations of workers according to whether their residence at the time when they take up employment is within the territory of the state concerned or abroad .

Question 49

Case C-387/01

Harald Weigel and Ingrid Weigel

v

Finanzlandesdirektion für Vorarlberg

art 45 - free movement of workers

Answer 49

the negative tax consequences for an individual who moved from one Member State to another to work did not breach Article 45, even if it might deter the worker from exercising rights of free movement, as it did not place that individual under any greater disadvantage than those already resident and subject to the same tax’

Question 50

Orfanopoulos and Oliveri v Land Baden-Württemberg (Cases C-482 & 493/01) [2004] ECR I-5257

expulsion - citizenship

see also R v Bouchereau (Case 30/77) [1977] ECR 1999 :
A previous criminal conviction can only be taken into account when ‘the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy’. This could only be the case where the individual concerned showed ‘a propensity to act in the same way in the future’.

Answer 50

In assessing the proportionality of the penalty, the national court must take account of a range of factors, including the nature and seriousness of the offence, the length of residence in the host state, the time that had elapsed since the offences were committed, and the offender’s family circumstances. Proper regard must be had to fundamental rights, specifically to the right to family life guaranteed by Article 8 of the European Convention on Human Rights.

Orfanopoulos, a Greek national, was living in Germany where he had worked intermittently. He was convicted of drugs offences and sentenced to a term of imprisonment, followed by deportation.

Question 51

Case 71/76 Thieffry

mutual recognition

Answer 51

mutual recognition of diplomas

this principles also applies to uni entry requirements / admission requirements : Commission v Austria.

Question 52

C-15/15 New Valmar BVBA v Global Pharmacies Partner Health Srl.

language requirements

note that it is a free movement of goods case but can be useful to bring up and there is the same case in Anton Las v PSA Antwerp NV. ( but it regards employment contracts which had to be in the national language)

Answer 52

it was disproportionate and in breach f free movement provisions.

legislation requiring invoices to be in the language of the member state

Question 53

Baumbast v Secretary of State for the Home Department (Case C-413/99)

non-economically active - workers - citizenship

Answer 53

Baumbast had sufficient means and adequate sickness insurance. He had a continued right of residence in the UK, arising by direct application of [Article 21 TFEU].

A German national living in the UK challenged the refusal to renew his residence permit on the ground that he was no longer economically active in the UK.