Free Movement of Persons Flashcards
Which treaty article provides for the free movement of workers?
Art 45 TFEU
* Abolition of any discrimination based on nationality
* Allows individuals to move and remain in the territory of another state for the prupose of employment
* The article does not apply to employment in the public service
How has a worker been defined in the case law?
- Levin & Steymann: Must be pursuing an activity that is effective and genuine, not dependent upon income. Not based on national law
- Lawrie-Blum: Working in the public service is to be construed narrowly, teachers in this case were held not to be despite being public under German law
- Nadin: To be a worker a person must perform services under the direction of another person in return for remuneration
What did the court rule in S and G?
- Cross-border dimension found
- Court was able to transpose the logic of Mary Carpenter, concerning services, to these cases on workers
- The effectiveness of the right to freedom of movement of workers may require that a TCN is given a right of residence as a refusal to allow it would interfere with the right
What is the citizenships directive?
Directive 2004/38
* Art 2- Definitions
* Art 3- Beneficiaries
* Art 4- Right to Exit
* Art 5- Right to Entry
* Art 6- Residence for 0-3 months
* Art 7- Residence for 3 months - 5 years
* Art 16- Permenant Residence after 5 years
* Art 24- Equal treatment, but no social welfare for 3 months (see Dano case)
* Art 27- Restrictions / Derogations
Who receives benefits under the citizenship directive?
- All EU nationals
- Family members of EU nationals that are third country nationals
How does the right of residence work under Art 7 of Directive 2004/38?
Right of residence for a period of more than three months if:
* A worker or self-employed
* Have sufficient resources and sickness insurance to not be a burden to the state
* Enrolled as a student with sufficient resources and health insurance
* or family of someone who satisfies the above
Extends to family members not from a member state of the EU
Citizen who is no longer a worker or self employed can retain the status where:
* Temporarily unable to work due to injury or sickness
* Involuntary employment after over one year employment and they are registered with the relevant job seekers
* Same as above but where employment was under 12 months, status only retained for no less than 6 months
* They undertake vocational training. Unless they are involuntary employed this training must relate to the previous employment to retain status
What additional rights are conferred by workers under Regulation 492/2011?
- Art 1: Any national can take up work in another member state
- Art 3- Provisions of law that limit employment of foreign nationals shall be disapplied
- Art 5- Shall recieve same treatment from employment offices as nationals seeking work
- Art 7- No different treatment, must get equal social and tax advantages
- Art 8- Equality to trade unions
- Art 9- Equality in housing
- Art 10- Children of workers entitled to state education
Which treaty article provides for the free movement of self-employed persons?
Self-employed people (i.e. distributive, personal social) seen as providing a service. Therefore:
Art 49
* Prohibits restrictions on the freedom of nationals to establish themselves in another state. This also applies to the setting up of agencies, branches and subsidiaries
* Includes the right to take up and pursue activities as self-employed persons and set up and manage undertakings under conditions laid down in the law
Art 54
* Companies of firms formed in accordance with the law of a member state having their administration within the Union shall be treated in the same way as natural persons
Where is the freedom of services provided?
Art 56 TFEU
Restrictions on freedom to provide services within the Union shall be prohibited
Art 62 TFEU
Provisions from Art 51-54 shall apply to all matters in the chapter (i.e. services)
How does the treaty provide restrictions for the freedom of establihsment and services?
Art 51
Shall not apply to activities which in that state are connected with the exercise of official authority
Art 52
Provisions of the Chapter do not effect applicability of provisions providing special treatment for foreign nationals on grounds of public policy, public security, or public health
What is the difference between the freedom to provide services and the freedom of establishment?
Establishment are LEGAL PERSONS: Conduct an economic activity in a stable and continuous way in another member state
Services are NATURAL PERSONS: Offer and provide services in other member states on a temporary basis while remaining in the country of origin
What case are relevant for the provision of services and establishment?
Gebhard: National rules that restrict freedoms under the Treaty must be applied in a non-discriminatory manner, must be justified by imperative requirements, rule must be suitable for securing the objective and must not go beyond what is necessary
Alpine Investments BV: Law banning cold calling was justified and proportionate on grounds of consumer protection and protecting Dutch financial services industry
Reyners: Law restricting non-Belgian nationals from being lawyers was not justified under Art 51 because not all law was connected with public matters
Schnitzer: Service provider is not to be regarded as established in another member state on the sole basis he is providing services over a long time and regular duration
What is the principle of mutual recognition of qualifications?
Thieffry: It is an unjustified restriction to refuse admission to a profession where a person holds a diploma recognised as an equivalent qualification by a competent body in another member state
Vlassopoulou: Under Art 49 authorities must assess whether qualifications a person has correspond with national provisions. If they do, they must admit them, and if not they must show they have gained the relevant knowledge and experience
Directive 2005/36/EC
Teresa Fernandez: If a person moves abroad to obtain a qualification and then returns to their member state, they must be afforded the same treatment as the migrant worker with regards to their qualification
What is the difference between the two directives relating to the rights of migrant lawyers?
Directive 77/249: Temporary provision of legal services across borders within the EU
Directive 98/5: Permenant establishment of a lawyer in another member state
What are the main treaty provisions on European Citizenship?
- Art 18: Prohibits discrimination on the grounds of nationality
- Art 20: Establishes citizenship of the Union, obtained when you are the national of a member state and this is in addition to national citizenship
- Art 21: Every citizen has the right to move and reside freely within the territory of the member states
What does the case of Ruiz Zambrano tell us?
- TCN can derive a right of permenant residence from their children where they are EU nationals
- This is because it would derive the children of their genuine enjoyment of the substance of their rights as EU nationals
- The case must be one that means the children would be compelled to leave, per Shirley McCarthy
How has the case law developed since Zambrano to determine when a TCN would be able to derive a right of residence?
O, S and L: Does not have to be a blood relation, however keeping a family together is not a sufficient reason. They must be compelled to leave if the parent was to be deported
Lida: Mere emotional bond not enough
Chavez-Vilchez: The fact that the other parent is actually able and willing to assume sole responsibility is a relevant factor but cannot be the sole ground to conclude no dependency. Must consider:
* Age of the child
* Their best interests
* Physical and emotional development
* Emotional ties to both parents
* Risk that separation would carry
What was said in the Baumbast case?
- Children who are installed in a MS during their parents exercise of free movement rights are allowed to stay to finish their education
- The fact children are not themselves citizens of the Union is irrelevant
- The parent who is the primary carer for the children may stay, regardless of the fact that she may not be an EU national and may have divorced her spouse under whose right she was able to reside in the MS initially
What was said in the case of Mary Carpenter?
- Deportation of a third country national spouse that was a homemaker was found to be an infringement upon the freedom to provide services
- Separation of the couple would be detrimental to their family life and therefore the conditions under which Mr Carpenter exercised his fundamental freedoms
- Deportation would be an interference with Mr Carpenters right to respect for family life
What are some key cases on states attempting to restrict access to aid?
Danny Bidar: UK in breach of EU law for not allowing a French national studying in the UK access to student loans because he was not ‘settled’, however MS could grant such assistance only to students who have demonstrated a certain degree of integration into the society
Trojani: While member states may make residence of a citixen of the Union who is not economically active conditional on having sufficient resources, that does not mean such person cannot suring his lawful residence in that member state benefit from the fundamental principle of equal treatment (i.e. not allowing access to the social assistance benefits was discriminatory)
De Cuyper: National legislation that places individuals at a disadvantage simply because they have exercised their right to move is a restriction and can only be justified if it is based on objective considerations of public interest independent of the nationality of the persons concerned and is proportionate
CG: Where a member state has applied more favourable rules in granting a right of residence they are not implementing the CRD, therefore the case falls solely with TFEU. Host member state then has duty under Art 1 and 7 to ensure the person lives in dignified conditions, especially where children are involved and vulnerable
