Free movement of Persons

Question 1

What is EU citizenship contingent on?

Answer 1

Being a member of a Member State.

Question 2

According to De Witte, what are the three paradigms in free movement of persons?

Answer 2

1) Economic - labour mobility seeks to secure optimal allocation of resources.
2) Social - mechanism for the integration of ‘peoples’.
3) Aspirational - free movement as a commitment to the ‘good life’.

Question 3

What does Art 45(1) TFEU provide for?

Answer 3

‘Freedom of movement for workers shall be secured within the Union.’

Question 4

How does the case of Trojani (2004) define who is a worker?

Answer 4

• Must not be interpreted narrowly.
• Any person who pursues activities that are genuine, and not purely ancillary, must be regarded as a worker.
• A person performs services under the direction of another person in return for remuneration.
• Subordination and remuneration central in assessment.

Question 5

What happened in case of Hartmann (2007)?

Answer 5

An individual maintained employment in one EC state but changed residence to another, and hence counted as a migrant worker. Subsequently, their non-working spouse may not be refused social security benefits because she failed residence requirements.

Question 6

What was said in the case of Bettray (1989) about workers?

Answer 6

A national employed in another Member State under a scheme for the purpose of maintaining, re-establishing or developing the capacity to work of those who are unable to take up employment under normal conditions, cannot be regarded as real and genuine activity. Hence, based on this alone, will not be regarded as a worker.

Question 7

What was said in the case of Levin (1982)?

Answer 7

Motive as to why a national sought work in another member state does not effect their right to enter and reside in other Member States. A person may be employed on an income which yields pay below a minimum level the state considers for subsistence, provided they are pursuing activity which is effective and genuine.

Question 8

What did the case of Commission v France (French Merchant Navy) (1974) say about direct discrimination and Article 45 TFEU?

Answer 8

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Question 9

What did the case of O’Flynn (1996) say about indirect discrimination and Article 45 TFEU?

Answer 9

Unless objectively justified and proportionate to the aim pursued, a national provision will be found to indirectly discriminate if it is simply intrinsically liable to affect migrant workers more than national workers, regardless of whether it is applicable irrespective of nationality.

This can hence include language and residence requirements.

Question 10

What did the case of Bosman (1995) say about access to labour market under Art 45 TFEU?

Answer 10

• The Treaty precludes rules under which a professional footballer who is a national of one Member State may not, on the expiry of his contract with a club, be employed by a club of another Member State unless the latter club has paid to the former club a transfer fee.
• Would otherwise restrict freedom of movement of plays who wish to pursue activity in other MS’s by preventing or deterring them from leaving clubs they belong to even after expiry of contract.
• The system of transfers directly affects market access.

Question 11

What does the case of Commission v Denmark (Company Cars) (2005) tell us?

Answer 11

Highlights a shift towards a test based on access: it states that ‘[a national rule] impedes freedom of movement of those workers since it imposes additional costs.’

Question 12

What does Article 7 of Reg 492/2011 say?

Answer 12

7(1): That a worker who is a national of another MS than the one they are working in should not be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work.

7(2): The worker shall enjoy the same social and tax advantages as national workers.

Question 13

What did the case of Hartmann (2007) say about the right to equal treatment for family members of workers?

Answer 13

Article 7 of Reg 492/2011 precludes the spouse of a migrant worker to be refused a child-raising allowance on the grounds of lack of residence in that MS.

Question 14

How do you know if you are a EU citizen?

Answer 14

Article 20(1) TFEU ties Union citizenship to national citizenship. A person is a citizen of the Union if and only if they are a citizen of a Member State.

Hence, creation of additional layer of belonging, not the replication of ‘real’ citizenship. Martiniello: complementary set of rights.

Question 15

What are different ways of thinking of citizenship?

Answer 15

EU citizenship as status: autonomous rights attached to Union citizenship. Seen as a mechanism for changing what national citizenship means.

EU citizenship as restrictive: rights are primarily for those who migrate.

Question 16

If the disadvantaged, poor and sick are excluded from migration rights, what does that say about Union citizenship?

Answer 16

That it is still just a quasi-economic policy.

Question 17

What does R. Bellamy say about the concept of modern citizenship?

Answer 17

French and American revolutions gave rise to the new political context of the nation-state. Beyond this, citizenship became close associated with belonging to national community, and national identity shaped allegiance to the state.

Question 18

How has post-war non-native migration in Europe weakened the existing notion of citizenship?

Answer 18

Citizenship remained a significant vehicle for rights and its link to nationality was problematic. Citizenship thus can be seen as exclusionary device, through which ethnic undertones emerge. Many thus think we should decouple notion of citizenship from nationality.

Question 19

What does Balibar and Habermas say about the notion of citizenship.

Answer 19

Balibar: Citizenship should be less exclusionary. Should be open to those who choose to participate.

But participation does not necessarily equal shared identity and commitment to communities.

Habermas: Sought middle way. Commitment to values of the community should be a condition for citizenship.

Question 20

When did the idea of EU citizenship first come about?

Answer 20

IGC on Political Union that preceded the Maastricht Treaty. Move towards political union meant that we should seek engagement beyond ‘market citizens’.

Question 21

What does Rottman (2010) tell us about the way MS’s can determine who is a national citizen?

Answer 21

Austrian became German citizen - German authorities sought to revoke G. citizenship due to deception - prospect of statelessness.

Found that it is up to the nation state to determine who is a citizen, but this circumstance affected EU law due to loss of status of EU citizen under Art. 20.

Overall, the prospect of withdrawal of citizenship must be based on the principle of proportionality, and whether it is justified in relation to the gravity of the offence. Any decision resulting in loss of Union citizenship must be proportionate.

Question 22

What is the political significance of Rottman (2010)?

Answer 22

As national rules pertaining to citizenship also effect EU citizenship, they are subject to EU law. Prior to the case, the emphasis was on the gate-keeping role of MS’s. Now the court has another field of national law to engage with and supervise.

Autonomous rights of EU citizens?

Question 23

What does Kostakopolou say about EU citizenship?

Answer 23

EU citizenship has a transformative dimension. Transforms national communities by inserting a globalising element into the nation, and hence penetrates and changes national citizenship.

Question 24

What are the two key rights you have under EU citizenship?

Answer 24

Art 21 TFEU: you have the right to move and reside in the EU, subject to limitations and conditions of measures adopted to give them effect.

Art 18 TFEU: right to non-discrimination based on nationality.

Question 25

What are the limitations and conditions to right to free movement under Art 21 TFEU?

Answer 25

Elaborated by the Citizenship Directive.

Article 6(1): Union citizens can have right to residence in another MS for up to 3 months without conditions or formalities, except to hold a valid passport. 6(2): applies to family members who are not MS nationals, and carry valid passport, accompanying Union citizen.

Art 7(1): Union citizen can have right to residence beyond 3 months if - (a) worker or self-employed person in host state; or (b) have sufficient resources for themselves and family members to not be burden on state social assistance system, and have comprehensive sickness cover; or (c) studying, and have sufficient resources and sickness cover. 7(2) - extends to non-nationals of MS who are family members.

7(3) - Still regarded as worker or self-employed if: (a) temporarily unable to work due to illness or accident; (b) has been employed for more than a year and then is recorded involuntarily unemployed, registered as job-seeker at employment office; (d) embarks on vocational training.

Question 26

How can a Union citizen acquire the right to permanent residence in another MS?

Answer 26

Legally resident in another MS for 5 years. Exempt from conditions concerning sufficient resource (unless absent for 2 consecutive years).

Seen as a reward for integration based on sustained economic activity or self-sufficiency.

Question 27

What is the practical effect of self-sufficiency conditions?

Answer 27

‘Expensive’ members of society do not enjoy free movement rights. Union citizenship is a citizenship for all Europeans who are not poor or sick.

For the non-economically active citizen, residence beyond 3 months requires sufficient resources and comprehensive sickness cover.

Flip-side: can be economically active, work little and claim substantial benefits, and this has no consequence on residence rights.

Question 28

What does the case of Baumbast (2002) tell us about MS interpretations to limitations on free movement of Union citizens?

Answer 28

German working in UK, whose medical insurance covered everything but ‘emergency treatment’.

UK said this was a breach of Directive despite family never being burden on the state.

Court held limitations and conditions must be applied in compliance with principle of proportionality. Highlights that it is unreasonable for a state to accept only those who need no assistance at all. Move from formal to contextual limitations to free movement.

Question 29

What does Art 8(4) say about MS determining what constitutes a sufficient level of resources?

Answer 29

State cannot use inflexible rules. Must take into account the personal situation of the person concerned. The amount should not be higher than threshold below which nationals become eligible for social assistance.

Question 30

What other cases and rules are there concerning sufficient level of resources?

Answer 30

Citizens do not need to personally possess any resources at all provided there is someone covering costs - Chen (2004): baby was okay because of non-EU mother; Commission v Belgium (2006): no need for provider to be family member or have legal relationship with citizen.

This should usually be one-time test unless behaviour of person raises legitimate doubts (Citizenship Directive, 14(2)), or is automatically expelled (Art 14(3)).

Question 31

What did the case of Garcia Avello (2003) tell us about the scope of prohibition of discrimination?

Answer 31

Spanish family in Belgium - could not register children’s surname with a Spanish style surname.

Belgium went on to lose the case, since it could not show an adequate justification for its refusal to take account of the family’s particular situation.

Now see Renevic-Vardyn and Wardyn (2012): CoJ found movement not obstructed unless refusal to amend joint surnames would be liable to cause ‘serious inconvenience’.

Question 32

What does D’Hoop (2002) tell us about the right to free movement?

Answer 32

Belgian citizen - born in France- unable to access allowance provided to Belgian school leavers.

Court argued she was receiving less favourable treatment because she had exercised her freedom of movement.

The opportunities of free movement would not be fully effective if the national was deterred in exercising those rights.

This was also shown in Radziejewski (2012): Swedish bankruptcy law penalised debtors leaving Sweden, and Court found the rule to be an unjustified deterrent to emigration.

Question 33

What are the rules concerning citizenship and social assistance?

Answer 33

Work-seeker’s right to enter a host state and stay there while looking for work is long-established. However, MS’s have always been reluctant to grant work-seekers benefits.

Collins (2004): examined extent to which MS can make entitlement to unemployment benefit conditional on residence requirement. Found it is no longer possible to exclude from the scope of Article 45 of the Treaty a benefit of a financial nature intended to facilitate access to employment in the labour market of a MS.

Art 24(2) of Directive: no right to social assistance to work-seekers.

Reconciliation with Vatsouras (2009): benefits ‘intended to facilitate access to the employment market’ are not in fact social assistance, and therefore not covered by Article 24(2).

Question 34

What did Ioannidis (2005) demonstrate how the Court now sees a restriction of some benefits to those who are in some sense ‘members’ of a society as legitimate?

Answer 34

Ioannidis (2005): Belgian allowance only available to those seeking first job and had been schooled in Belgian. Mr Ioannidis was a Greek citizen but now seeking work in Belgium. Court recognised that it is a legitimate for a national legislature to ensure there is a real link between the applicant and the employment market concerned. A single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature. It therefore goes beyond what is necessary to attain the objective pursued.

Question 35

What did Bidar demonstrate how the Court now sees a restriction of some benefits to those who are in some sense ‘members’ of a society as legitimate?

Answer 35

In Bidar (concerning a student applying for a subsidised loan in their host state) the Court suggested that integration might be demonstrated by having ‘resided in the host Member State for a certain length of time’. There needed to be a ‘certain degree of integration.’

Question 36

What did Forster (2008) demonstrate how the Court now sees a restriction of some benefits to those who are in some sense ‘members’ of a society as legitimate?

Answer 36

Forster (2008) provides a powerful counter-example to the need to adapt to migrants. The Netherlands required foreign students to be resident for five years before having a right to finance support for study, but did not apply this rule to Dutch students – even if they had never lived in the Netherlands.

The five-year residence requirement in question did not violate the principle of non-discrimination. The ECJ finds, in substance, that nationality itself is a ‘real link’ with a state, so that preferential treatment for nationals is not always discrimination, but may be a justified distinction reflecting the real difference between nationals and foreigners.

Question 37

What did the case of Uecker and Jacquet (1997) tell us about reverse discrimination?

Answer 37

Two German citizens attempted to rely on EU family rights to bring their partners to Germany.

Since Uecker and Jacquet had not exercised EU movement rights, there was no such linking factor and the Treaty simply did not apply.

The Court’s response was that the non-discrimination rule only applies within the scope of the Treaty and the whole point is that situations with no cross-border aspect are not within that scope.

Question 38

How did Singh (1992) signal a softer tone to reverse discrinimination than Uecker and Jacquet (1997)?

Answer 38

British woman – went to work in Germany – lived with Indian husband – wanted to return to UK – told husband would not be granted residence – UK argued that as a British citizen she would be in an internal situation and so outside scope of EU law.

Court argued that to take away Ms Singh’s EU rights upon her return would be a deterrent to movement: had she known this would happen it would have made it less attractive for her to go to Germany in the first place.

Question 39

Has EU law created a privileged and cosmopolitan client group to whom it affords protection?

Answer 39

Must be seen in light of Ruiz Zambrano (2011):

Court found that Article 20 TFEU prevented Belgium from expelling the Colombian parents of Belgian children.

Children would have to with their parents, but the children were Union citizens.

To force a citizen to leave the Union was to deprive them of the ‘genuine enjoyment of the substance’ of their citizenship rights, and therefore counter to the Treaty.

Question 40

What is the logical difference between Carpenter (2002) and Ruiz Zambrano (2011)?

Answer 40

Carpenter (2002): measures which made it harder for him to go abroad on business trips – in this case the deportation of his non-European wife, leaving no one to look after his children – were thus restrictions on his movement.

In Carpenter the harm was that the family was to be split. In Ruiz Zambrano the harm was precisely that it would not be – so the children would leave the EU.

Question 41

What are the key points to Azoulai’s article ‘Euro-Bonds’. (Part 1)

Answer 41

With Zambrano, the ECJ has moved away from a concept of transnational integration to one of genuine European integration.

Now moving from a transnational (the fact of being assimilated in another country) integration to a genuine European integration.

Question 42

What are the key points to Azoulai’s article ‘Euro-Bonds’. (Part 2)

Answer 42

The Court decided that the minor children, who are EU citizens, should not be deprived of the right to stay within the territory of the European Union. In other words, deportation of European citizens to countries outside the territory of Europe is not permitted.

The Court proclaimed that “Union citizenship is destined to be the fundamental status of nationals of the member states” for the first time in the Grzelczyk case in 2001.

Question 43

What are the key points to Azoulai’s article ‘Euro-Bonds’. (Part 3)

Answer 43

In Zambrano, the children haven’t circulated within the Union. The EU law influence is therefore considerably widened to cover non-mobile citizens.

The main consequence of the case is the transformation of the status of Mr Ruiz Zambrano. From asylum seeker, he becomes a ‘quasi’ European citizen. From transitory residence and illegal status, he gets permanent and legal residence.

This case highlights another dimension of European citizenship, namely the protection of the rights of Union citizens as genuine ‘Europeans’.

Question 44

What happened in the Dano case?

Answer 44

Economically inactive EU citizens who go to another Member State solely in order to obtain social assistance may be excluded from certain social benefits.

Where the period of residence is longer than 3 months but less than 5 years (such as in the present case) one of the conditions which the directive lays down for a right of residence is that economically inactive persons must have sufficient resources of their own.

A Member State must therefore have the possibility of refusing the grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence.

Question 45

What does Dominik Dusterhaus say about the Dano case?

Answer 45

Dano casts the right to reside as a privilege of the self-subsistent and accepts that those who are not can be excluded from social benefits granted to needy nationals and the economically active.

The crucial provision in all cases is Paragraph 7(1)(2) SGB II, which excludes from these benefits foreign nationals whose right of residence arises solely from the search for employment.

But would not an individualised approach through the lens of proportionality, based on a ‘genuine link’ requirement , have done the trick without petrifying the categorical divide based on a person’s occupation better than a categorical exclusion?

I rather wonder whether, upon the categorical exclusion of economically inactive benefit seekers from legal residence and equal treatment, Union citizenship can still be dubbed the ‘fundamental status’ of member state nationals entailing the right not to be discriminated when moving.

Question 46

What happened in the case of Bidar?

Answer 46

Nationals of another MS are entitled to receive a student loan if they are ‘settled’ in the UK and have been resident there for the 3 years prior to commencing their course.

Danny Bidar, a French national, moved to the UK in August 1998, accompanying his mother who was to undergo medical treatment there. Completed 3 years of secondary education in UK.

Court found that the requirements imposed by the English legislation are more easily met by UK nationals and risk placing at a disadvantage primarily nationals of other MS’s.

The English legislation precludes any possibility of a national of another MS obtaining settled status as a student.

Question 47

What was significant in the new UK-EU settlement?

Answer 47

‘Conditions may be imposed in relation to certain benefits to ensure that there is a real and effective degree of connection between the person concerned and the labour market of the host Member State. ‘

‘Member States have the possibility of refusing to grant social benefits to persons who exercise their right to freedom of movement solely in order to obtain Member States’ social assistance’

Proposes an emergency break system for 4 years.