Free Movement of Persons

Question 1

Which article prohibits obstacles to free movement of workers?

Answer 1

Article 45 TFEU

Question 2

Which article prohibits obstacles to the freedom of establishment?

Answer 2

Article 49 TFEU

Question 3

Which article prohibits obstacles to the free movement of services?

Answer 3

Article 56 TFEU

Question 4

Under which treaty was the legal concept of EU citizenship introduced and why was it important?

Answer 4

The Treaty of Maastricht; important because it meant that member state nationals who are not economically active can derive free movement and other rights from the treaty

Question 5

Which provision (article) enables the right to free movement and residence? (often read together with article 7)

Answer 5

Article 21 TFEU

Question 6

Which provision prohibits discrimination on the ground of nationality?

Answer 6

Article 18 TFEU

Question 7

Which provision is the ‘core citizenship’ one?

Answer 7

Article 20 TFEU

Question 8

What types of direct effect does article 45 have?

Answer 8

Vertical direct effect: Can be relied on by an individual against the state

Semi horizontal direct effect: When an individual can go against a body that is not the state but has lots of power (MNC)

Horizontal direct effect: Individual against another individual

Question 9

In which case did a job at a bank require a certificate showing that the person is bilingual with an exam that could only be taken 3 times a year?

Answer 9

Angonese:
was considered direct discrimination

Article 45 TFEU is horizontally directly effective as prohibition on discrimination based on nationality applies BOTH to actions of public authorities as well as to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services

Discrimination as it is impossible to submit proof of required knowledge in any other forms.

Question 10

Which case gives an example of reverse discrimination?

Answer 10

Hurd v Jones (1986)
Teachers of a member state treated worse than other teachers coming in from outside of a member state . Reverse discrimination is not prohibited by EU law as it does not impede the achievement of their free movement aim.

Question 11

Importance of Singh (1992) on reverse discrimination

Answer 11

A union citizen who has exercised his right to free movement as a worker by moving to another state in order to work can rely on EU law against his own member state

Question 12

Definition of a worker under Meeusen (1999)

Answer 12

“Any person who persues employment activities which are effective and genuine to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary”

Question 13

Definition of employment activities under Laurie-Blum (1986)

Answer 13

“for a certain period of time a person performs services for and under the direction of another person in return of which he receives remuneration”

Question 14

Case that states ‘workers’ can earn less than the legal minimum wage and need to supplement their income from private sources (eg. family)

Answer 14

Levin (1982)
British national moved to neverlands to work part time as a chamber maid. Tried to apply for resident permit but was declined as part time worker not earning minimum wage. Levin claimed her family was supplementing her income.

Question 15

Case that states that workers can be ‘workers’ even if they earn less than the minimum legal wage and need to supplement their income using public funds

Answer 15

Kempf (1986)
Part time music teacher earning less than minimum wage & applied for social assistance. Activity was effective, genuine and not purely marginal.

Question 16

Case stating that job seekers are entitled to fewer rights then fully fledged workers

Answer 16

Antonissen (1991)
Member state can expel a job seeker after a reasonable period has passed without finding a job (3 months) unless the person is continuing to seek employment and has genuine chances of being engaged

Question 17

In which case did the member state manage to justify the restriction of stopping free moment of union citizens? (Article 21 TFEU)

Answer 17

Wijsenbeek (1999) Man refused to give passport as claimed he had the right of free movement without showing ID. ECJ agreed but at the time there was no harmonisation to immigration and member states had the right to ask to see ID

Question 18

In which case did a German man work in UK for 3 yrs and then open up business in Soho and China and claimed he had the freedom to article 21 TFEU and Article 49 TFEU (freedom of establishment)?

Answer 18

Baumbast (2002)
Did not have right to Article 49 TFEU (freedom of establishment) as his business was no longer in the UK. Did have right to article 21 TFEu (free movement) as he was still a union citizen.

Case showed that Article 21 TFEU is vertically directly effective & is a fundamental citizenship right but its exercise is subject to judicial review & must comply with the general principle of EU law & proportionality.

Question 19

Which case showed that the age of a citizen looking to express his rights under article 21 does not matter?

Answer 19

Chen (2004)
Chinese family wanted to move to UK. Had child in UK so child became an EU citizen. Applied for permanent residence but said cannot until the child is 18.

ECJ said this is a breach of article 21 as even a baby can reside rights. The primary carer of a minor union citizen derives a right from EU law to reside in the host state together with the Union citizen.

Question 20

Which case said that union citizens who are lawfully resident in another state fall into article 20 & are entitled to rights including Article 18 TFEU (discrimination)

Answer 20

Martinez Sala (1998) 
Spanish national moved to germany when she was 12. Spain wasn't part of EU at the time so moved under german immigration law. Gave birth to a child & applied to German child benefit was rejected. 

Direct discrimination against other nationalities.
Breach of article 18 TFEU read with Article 20 TFEU

Question 21

Which case drew a distinction between a reasonable and an unreasonable burden on the state?

Answer 21

Grzelczk (2001)
4th year French student in Belgium, working part time but couldn’t in 4th year as was too busy. Applied for social assistance and was rejected & was told he had to leave because he was no longer economically sufficient.

Article 21 TFEU; when someone requires social assistance benefit, should not be required to leave, take into account personal circumstances.

Question 22

Can a restriction on free movement of persons be justified?

Answer 22

YES.

Treaty derogations: if goes against public policy, public security, public health. Must be decided on which grounds the host state will be justifying the measure, proportionality must be assessed (suitability, necessity, is there a less restrictive alternative?) Compliance with fundamental human rights

Objective justifications:
Equivalent to mandatory requirements; judge made exhaustive list of non economic grounds that can be relied on to justify restrictions, can be used to justify indirectly discriminatory restrictions and genuinely non discriminatory measures

From Directive 2004/38.
Article 27: must not meet econ aims, proportionality, serious threat, previous convictions do not matter
Article 28: longer a person has resided in state, more difficult to deport

Question 23

What requirements must be met for a member state measure against free movement of persons to be objectively justified?

Answer 23

1) Must be adopted in pursuit of a legitimate public interest compatible with EU aims
2) Must be equally applicable to persons within the state and be applied without direct discrimination.
3) Restriction must be proportinate (suitable, necessary, is there a less restrictive way?)
4) Can only be justified if it respects fundamental rights (Carpenter 2002)

Question 24

Which articles from directive 2004/38 give family reunification rights?

Answer 24

Article 3(1) states family members have a right to accompany them 
Article 2(2) defines family member

Question 25

Which case imposed a dual burden on workers who are nationals of another Member State (where host state does not recognise appropriate qualifications)

Answer 25

Commission v. Portugal (2004)
Portuguesa legislation which governed ability to become security guards, said they needed certain certificates. Would not accept certificates from other member states.
Indirect discrimination (dual burden)

Question 26

Which case did German national with minor criminal conviction move to Italy and tried to get courts to use German in proceedings

Answer 26

Bickel and Franz (1988)
Direct discrimination art 21, 18
Right if union citizen who has the temporarily moved to another member state not to be discriminated against on ground of nationality with regards to certain entitlements which weren’t economically burdensome

Question 27

What are the three treaty derogations which allow restrictions on free movement to be justified

Answer 27

Public policy
Public security
Punlic health