Free Movement of Persons Flashcards
Art 45 TFEU
Centrality of the non-discrimination principle: application to the specific context of workers, of the general principle in Art 18 TFEU (prohibiting discrimination on grounds of nationality)
Walgrave and Koch
Art 45 even applies to work done outside of EU as long as legal relationship was entered into within EU
Walgrave and Koch || Bosman
Art 45 effective vertically and horizontally
Angnonese
Art 45 also effective against individual employers who refuse to appoint someone on grounds of nationality
Requirement for a certificate of bilingualism for a post at a bank CONTRARY to Art 45
(referring to Defrenne: ambitious language doesn’t stop Treaty provision from having direct effect, if the principle is CLEAR)
Art 46 TFEU
Freedoms set out in Art 45 have to be secured in MS secondary legislation
2 most important pieces of secondary legislation (applying 45 under 46)
1) “Citizens’ rights directive”: Directive 2004/38 (introduced right of permanent residence)
2) Regulation 492/2011 (fleshing out basic equal treatment principle and substantive rights/benefits enjoyed by workers)
Regulation 492/2011
Definition of a worker - an EU concept
Regulation 492/2011 restricts application of 45 to EU workers who are NATIONALS
Hoekstra
CJEU has hermeneutic monopoly on what constitutes a worker: “genuine and effective employment, more than marginal and ancillary”
Jany
Prostitutes = self-employed (under Art 49), up to MS to determined if it is actually legal employment
“Principle of free movement”
CREATION OF FREE MARKET - economic aspects (renumeration) vs. ABILITY OF NATIONALS TO IMPROVE LIFE - social aspects (quality of life)
Levin
Levin didn’t have sufficient means of support equal to minimum legal wage in the Netherlands –> part-time work is effective means of improving living conditions –> social > economic
ALSO: purpose for which worker moves intaking up employment is irrelevant (here, chambermaid took up employment just to gain permanent residency)
A-G Slynn
enthusiastic champion of right of individual to improve their living conditions
“Abuse of rights” arguments
Art 35 Directive 2004/38: abuse of rights exception, BUT applies only when work undertaken is not genuine or effective (Hoekstra definition)
Kempf
If worker seeks to supplement income, irrelevant where they’re form –> MS can tighten criteria for social assistance for ALL (not just migrants) or no-one
Lawrie-Blum
3 part definition of what a worker is:
- provides services under direction
- for certain periods of time
- for renumeration
Objective test to be determined by NC, fact that worker resides in one and is employed in another MS is irrelevant
Here, the fact that as a trainee she was paid less than a full teacher’s salary was immaterial for the same reason given in LEVIN and KEMPF: genuine economic nature of work + renumeration
Union citizenship (non-economic rights)
Art. 18 - 25 TFEU
Directive 2004/38
Workers, establishment and services (economic rights)
Art. 45 - 48 (WORKERS)
Art. 49 - 54 (ESTABLISHMENT)
Art. 56 - 62 (SERVICES)
Art 18 TFEU
Prohibits discrimination on grounds of nationality within scope of treaties: may be relied on by Union citizen lawfully resident in another MS for rights under EU law
Art 20(1) TFEU
Establishes Union citizenship: anyone with nationality of MS
Art 20(2) TFEU
Union citizens enjoy rights and are subject to duties under treaties: exercise of these subject to conditions under treaties and secondary legislation (mainly Directive 2004/38)
Art 21(1)
Union citizens can move and reside freely within territory of MS - detailed provisions in 2004/38
2004/38, Art 2
Defines “family member” for the purposes of residence rights
2004/38, Art 6
Residence for up to 6 months for UC in other MS - no formalities other than valid identification
2004/38, Art 7
WORKER: UC who become unemployed due to illness/ accidents retain status as workers as do the involuntarily unemployed IF they had been employed for a year or more AND registered as jobseekers
Regulation 492/2011, Art 1 - 6
Eligibility for employment
Regulation 492/2011, Art 7 - 9
Equality within employment
Regulation 492/2011, Art 10
Workers’ families
Steymann (Bhagwan community)
Took Lawrie-Blum concept of economic activity further:: CJEU: INFORMAL renumeration (pocket money, food for his work as a plumber) qualified him as a worker
HOWEVER up to NC to decide and they said he wasn’t a worker
Bettray
The genuine and effective rule: therapeutic work as part of drug rehabilitation was NOT work because purpose of work was to taylor work around his capacities RATHER than meet a genuine economic need
CRITIQUE of Bettray
Mobility of workforce requires reintegration - no sheltered employment for the disabled?
Trojani
Distinguish Bettray: social reintegration itself doesn’t disqualify, CRUCIAL is whether services are capable of being regarded as part of the normal labour market
Here, directed by Salvation Army to work in hostel for 30hrs/week –> worked under normal circumstances, providing real services
Brown
Work undertake purely to prepare for a course of study - worker? YES. But NO social benefits (Kempf)
Ninni-Orasche
Worked as a waitress merely to finance university - worker? YES. But social advantages could be affected
Antonissen
THOSE SEEKING WORK DON’S HAVE FULL STATUS AS WORKER BUT THEY ARE COVERED UNDER ART 45
6 months to look for work was reasonable
CJEU’s purposive approach: If he couldn’t move abroad to see work, how would he get work?
Collins
Collins real link: job seekers having to prove link with those state labour marked (proportionate - several years of residence combined with substantial time seeking work or marriage to HS national)
Ioannidis
Right to apply for jobseekers allowance under the same conditions as nationals in HS BUT Collins real link can be imposed
Vatsouras
2004/38, Art. 24(2): jobseeker entitled to allowance if…
1) social assistance they’re applying for is designed to aid reintegration (no non-work related benefits)
2) jobseeker must show “genuine” link to HS
DEBATE: Vatsouras “genuine” link
In Vatsouras: merely having genuine chance of employment
LOW BAR - academics not necessarily convinced
Direct discrimination cases
Commission v French Republic: French Maritime code was not allowed to require certain proportion of French nationals as crew members
Scheibel: derogation from Art 45 would require strong justification –> trade munitions company pleaded national security –> disproportionate
O’Flynn
INDIRECT DISCRIMINATION: As long as you can show that provisions are intrinsically liable to produce discrimination, you don’t need to show that they empirically affected a large number of people
Indirect discrimination (more easily satisfied by nationals) - CASES
O’Flynn
Angonese
Ugliola
Commission v Belgium
Angonese (indirect discrimination)
Certificate of bilingualism only obtainable from Bolzano region: easier for Italians
Ugliola (indirect discrimination)
Taking into account of national service in Bundeswehr when establishing worker’s security of employment: easier for Germans
Art 3(1): LANGUAGE REQUIREMENTS
Usually justify satisfied:
Groener
Las (disproportionate)
Groener
Dutch woman was refused post at design college because she didn’t speak Gaelic –> allowed because it was policy to promote the Irish language
BUT looking at Agonise, it must be allowed to learn lenaguagein another country
Las
All employment contracts where the established place of business was Flanders had to be drafted in Dutch and would be nullified if not –> DISPROPORTIONATE –> no language requirement exception –> indirectly discriminatory
Neither directly or indirectly discriminatory
obstacles to accessing the employment market - restrict general exercise of freedom of movement
Bosman
Football clubs had to pay large sums for players whose contracts had ended –> irrelevant that it applied to all MS –> restricted freedom of movement
Terhoeve
Preclusion from freedom of movement if payment of social contributions when LEAVING country of origin = obstacle to free movement right
Denmark || Van Lent
Rule prohibiting vehicle registered in one MS to be used in another = obstacle to free movement right
EXCEPTION to obstacle to free movement
Weigel: The Court will not accept an argument that because one MS’s taxation is higher than another’s that this is a restriction to free movement BECAUSE taxes have to be paid either way
“Wholly internal” situations - Art 45
Art 45 doesn’t apply to wholly internal situations
Saunders - workers cannot rely on Art 45 against their own state when they have never exercised their right
HOWEVER
Terhoeve: once worker has exercised free movement right, the situation is no longer “wholly internal”
Art 45(4)
THE PUBLIC SERVICE EXEMPTION (Hoekstra: CJEU still has hermeneutic monopoly)
Sotgiu
CJEU had hermeneutic monopoly over the extend of public service exemption
Art 45(4) CANNOT be used to justify discriminatory conditions WITHIN public service ONLY to restrict admission to it in the first place
Commission v Belgium
Test for public service exemption:
1) involve participation in exercise of powers conferred by public law
2) must entail duties designed to safeguard general interests of the state
HERE: rejected the idea that posts which might mature into involving public service would qualify for exemption
Directive 2004/38
Aims to facilitate the exercise of treaty-derived individual rights to move/reside freely + strengthen that right
2004/38, Art 6
< 3 months residence –> no condition other than valid identification
2004/38, Art 8
> 3 months residence –> registration might be required
2004/38, Art 10
Non-EU family members get residence card
2004/38, Art 5(4)
Rights to reside/work are NOT conditional upon initial satisfaction of formalities and MS can only impose PROPORTIONATE and non-discriminatory penalties
MRAX
Deportation, refusal of entry, revocation of right of residence = DISPROPORTIONATE PENALTIES, country to Art 5(4) D 2004/38
Metock
3rd party national spouse also avails of rights under 2004/38, even if they had not been previously legally resident in EU
Costello on Metock
CJEU’s right based vision v. MS’ desire to assert first access control
Currie on Metock
Recognition of the reality of family life –> family memberships which arise in the aftermath of migration are worthy of protection
Caves Kriemhild
Art 7: those who are involuntarily unemployed following a period on more than one year employment AND have registered as jobseekers retain status as workers
Bernini || Raulin
Art. 7: voluntary employment (vocational training related to previous employment) –> retain worker status
What if the voluntary unemployed goes on to become a jobseeker?
Antonissen, Collins –> jobseeker rights under Art 45 HOWEVER Collins, Ioannidis–> jobseekers aren’t workers in full sense of the term, the involuntarily unemployed are
Saint-Prix
Pregnancy - 3 months before and after birth of voluntary unemployment –> retained status as worker
Directive 2004/38
Introduction of the right of permanent residence - 5 years
Art 16 - 18 –> conditions for permanent residency
Regulation 492/2011
Fleshing out Art 45 –> positive, substantive rights of movement and equality of treatment
492/2011, Art 7(2)
WORKERS from other MS are entitled to the same social advantages as national workers
De Vos
Pension insurance during military service are not a social advantage within 492/2011, Art 7(2) because compensation NOT advantage
Giersch
Residence requirement for financial aid for higher education breached Art 7(2) of 492/2011
Christini
Art 7(2) social advantages now extend to family members too!
492/2011, Art 7(3)
Educational rights for EU worker
Brown || Ninni-Orasche: employment must not be ancillary to the main purpose of pursuing a course of study
Lair
Vocational schools qualify for social advantage under Art 7(2)
492/2011, Art 10
Educational rights for children = dame position of national children –> broader educational rights than their parent under Art 7(3), not subject to work (Ninni-Orasche || Brown)
Gaal
492/2011, Art 10 educational rights for children continue after age if 21, even if independent
Baumbast
492/2011, Art 10 educational rights for children continue if parents leave MS, children can finish education
ALSO: non-EU wife could continue to reside as long as children (with or without EU nationality) were exercising their 492/2011 Art 10 right BECAUSE she was the primary carer
Directive 2004/38: Public policy, security and health restrictions
Art. 27 - 33 (2004/38) - 3 levels of protection
1) general level under EU law
2) enhanced level for those with permanent residency
3) super enhanced level for minors or residents of 10 years or more
Art 27(2)
2004/38 restrictions have to be proportionate and based exclusively on individual’s conduct
Santillo
Art 27(2) 2004/38: exceptions cannot be invoked to serve economic ends –> past criminal convictions only enough to qualify for restriction if CURRENT threat
Calfa
Automatic expulsion for commission of an offence without taking into regard the CURRENT, INDIVIDUAL risk –> unacceptable under Art 27(2) 2004/38
Maastricht Treaty - citizen rights
Introduced idea of citizenship rights –> beginning of an attempt to alter basis of EU from economic to political union
Lisbon Treaty - citizen rights
Linked citizenship more closely to prohibition of discrimination
NOTE CRD!
Didn’t eliminate the distinction economically active vs. economically non-active
Grzelczyk - citizenship
“Union states is destined to be fundamental status of nationals of the member states”
Central issue arising from the notion of “citizenship”
Is citizenship now the primary legal status under EU law and replacing economic distinctions OR is citizenship merely a residential framework to the economic distinctions?
2004/38, Art 24
Union citizens and family members enjoy equal treatment with nationals within scope of treaties - incorporated CJEU case law on equal treatment with NO entitlement to financial assistance during first 3 MONTHS
Dano v Jobseeker Leipzig (social assistance)
Additional right to derogate (apart from 24): when applicant for social assistance is economically inactive, with no intention to work and does not comply with the conditions to reside and exercise of free movement set out in 2004/38 (sufficient resources not to become a burden, comprehensive medical cover)
Art 20 and 21 TFEU
Increased extend to which individuals can challenge restrictions on the rights they enjoy within their own MS, NOT having exercised their free movement right (“wholly internal situations”)
–> the neither economically active nor self-sufficient (not covered by previous EU status categories) CAN NOW invoke Art 18, 20 and 21 for equality treatment when it comes to benefits
Art 21 TFEU
Autonomous and directly effective right of movement and residence
CONDITIONS:
(i) public policy, security and health restrictions (27-33 of 2004/38)
(ii) finance and health insurance conditions (7(1) 2004/38) on non- economically active following 3 months period of Art 6 2004/38
Baumbast
Did he have an INDEPENDENT right of residence as EU citizen even though he was no longer a worker and did not fit into any economic categories (worked in Asia)?
Yes. Art. 20(1) confers a directly effective right of residence regardless of economic status, limitations and conditions were secondary to this directly effective right
Chen
Confirmed that Art 20(1) TFEU confers a directly effective right of residence for EU citizens who don’t fall within any of the economic status categories
HERE: Baby, born to Chinese mother in Northern Ireland, had a right of residence even though she had never exercised it as an economically active person
Conditions/limitation must be applied proportionately! Baby did not have resources or health care but her mother did
The “wholly internal” situations (of Saunders and Morson) after the idea of EU citizenship
Rejected in Kramzov and Uecker
BUT, the CJEU has been willing to give law on citizenship effect in wholly internal situations (claims being made by nationals against their state)
1) Cases involving dual nationality
2) Family reunification claims
DUAL NATIONALITY cases
Garcia Avello
Chen
FAMILY REUNIFICATION cases
Zambrano
McCarthy
Dereci
Garcia Avello || Chen
Cross-border element despite never having exercised free movement right
Garcia Avello: Belgian rule prohibiting any change in a registered surname = discrimination under Art 18 and 20 TFEU because her was discriminated against by comparison to other Belgian nationals. He had never exercised his free movement right BUT this was not a wholly internal situation because of his dual nationality
Zambrano
Family reunification claims: non-EU parents with 2 EU kids who had never left Belgium
8 MS argued wholly internal situation but Sharpston AG AND CJEU said right of residence and right of movement are INDEPENDENT not combined, you can have citizenship without movement
NOTE CJEU’s brief and reasoned judgement: refusal of residence and work permit to parents would obstruct enjoyment of children’s citizenship rights!
McCarthy
CJEU went back on Zambrano: right of residence only when exercised right of free movement
DISTINGUISHABLE from Zambrano though in terms of dependence/vulnerability - Jamaican husband not children
Dereci
Even harsher row back on Zambrano than McCarthy: a denial of citizen rights only occurs when they had to leave the EU as a whole
2 conditions imposed by 2004/38 on non-workers
Art 24(2) 2004/38:
(i) sufficient resources not to become a burden
(ii) comprehensive medical insurance
Citizenship law’s effect on
(i) non-economically active
(ii) students
(iii) jobseekers
They all saw extensions to the circumstances under which they might enjoy social benefits in HS
Martinez Sala
Extended definition of “worker” to those seeking work - 3 months to seek
BEFORE 2004/38: most liberal approach to social benefits –> economically non-active
Simply because EU citizenship and residence, economic activity irrelevant!
NOTE here, there was an alternative legal basis for residence provided by German law
Trojani
AFTER 2004/38: he lacked sufficient resources to qualify for lawful residence
NOTE here, he qualified for lawful residence under less onerous Belgian law
Trojani: sufficient resources test
MS are NOT ENTITLED to equate recourse to social assistance to lack of sufficient resources
SUPPORTED in Bey and upheld in Dano (despite assertion of Art 24(2))
Dano v Jobseeker Lepzig
No longer enough to show lawful resident under national law (Trojani, Martinez) - must show lawful resident under EU law and satisfy Art 24(2) 2004/38 conditions proportionally to exercise Art 18 non-discrimination right
Pre-citizenship law for students
Gravier: enrolment fee for non-Belgium was contrary to Art 18
Liar || Brown: CJEU limited scope of potential liability of MS following Gravier - more substantive liabilities such as maintenance (not relating to ACCESS), were exempted from Art 18 claims
1990 Student Residence Directive: right of residence that MS could subject to condition of sufficient resources
Grzelczyk: the turning point for Students –> social benefits
Based on 1990 Student Residence Directive, claim for social assistance seem unlikely to be successful
However
Neither 1990 Student Directive nor 2004/38 directive specified a ballpark figures to what “sufficient resources” mean
Applying unreasonable burden test, there must be something like a reasonable burden and Grzelczyk highlighted there was a public duty on MS to show some care to other MS nationals –> presuming a certain degree of solidarity between nationals
ESPECIALLY when difficulties are temporary, like that of a student
Bidar
Liar || Brown had said that maintenance grants were exempted from Art 18 claims
BUT Bidar…
Art 24 2004/38 brought student maintenance within the scope of the Treaty –> now a social benefit subject to Art 18 and 45 discrimination claims
24(2) DEROGATION EXCESSIVELY RESTRICTIVE - alternative test:
Collins link with host state, NOT an economic one, cultural/social interaction could be enough
(UK: maintenance grant if lived inYK for 3 years)
Foerster
Condition of 5 years prior residence in MS = proportionate + acceptable to establish Collins link for maintenance grant to non-HS students
Prinz and Seenerger
Requirement having obtained permanent residence by having spent 3 years in awarding MS prior to assumption of studies was disproportionate –> not retroactively applicable like in Foerster (if you didn’t know and didn’t apply for residence vs. just prove afterwards the 5 years)
Bressol
Belgium argued it needed quota system on acceptance to study medicine for public heal exemption (needed to ensure certain number of Belgians trained as doctors to protect domestic medical system)
CJEU: soft stance - contravenes Art 20 + 21 but justified on public health grounds - empirical evidence needed though
==> CJEU responsive to adverse reactions of MS (see also Commission v Austria)
Jobseeker –> benefits cases
D’Hoop
Collins
Vatsouras
Student –> benefits cases
Gravier Liar || Brown Grzelczyk Bidar Foerster Commission v Austria || Bressol (CJEU more responsive to adverse reactions of MS
D’Hoop
Belgian national was refused tide over allowance because she had completed her secondary education in France –> Art 18 discrimination, requirement disproportionate because liable to frustrate enjoyment of free movement
Particularly unacceptable that she had been discriminated against consequent to her exercise of her free movement right
ALSO: real link of Belgian national with Belgium?
Collins
Introduction of citizenship law merited a reversal of its previous position in Lebon, were EU nationals were only entitle to equal access to employment NOT social and tax benefits enjoyed by workers under Art. 7 492/2011
–> JOBSEEKERS WOULD HENCEFORTH BE ENTITLED TO BENEFITS DESIGNED TO FACILITATE ACCESS TO EMPLOYMENT MARKET (Collins real link was allowed, but must be assessed in proportionate and non-discriminatory way - this would later change with Vatsouras)
Vatsouras
Would Collins survive Art. 24(2) of 2004/38 which allows States to derogate from equal treatment principle to limit entitlement to social assistance for migrants during the initial first 3 months?
Greek nationals, whose economic status under German law was unclear had applied for jobseekers allowance - was the Art 24(2) derogation was comparable with EU citizenship rights under Art 18 and 21
Confirming Collins: introduction of EU citizenship overruled earlier caselaw (Lebon) –> Art 45(2) included social benefits (to facilitate access to employment market) for jobseekers
JOBSEEKERS BENEFITS ARE NOT TO BE CONSIDERED SOCIAL BENEFITS UNDER 24(2)
Art 16, 2004/38 Directive
Introduced right of permanent residence if resided for a continuous period of 5 years not broken by more than a 2 year continuous absence
Dias
period of 5 year residence has to be lawful under Art 7(1) of CRD i.e. spent as a worker, family member of a worker or a citizen with resources
Art. 27, Directive 2004/38
Provisions governing the measures which MS can take against EU citizens and their families on grounds of PUBLIC POLICY, SECURITY AND HEALTH
Byankov (refusal to permit exit)
Art 27 CRD can not be invoked to pursue economic ends –> how would the risk to a few creditors here constitute an overall threat to PUBLIC threat/security?
Aladzhov (refusaal to permit exit)
In certain circumstances, non-payment of tax liability can amount to public security risk (proportionality and necessity test)
Art 27-33 CRD public security restrictions - ultra enhanced protection (10 years residence)
MG: 10 years must in principle be continuous and calculated backwards from date of the order for expulsion
PI: sexual offences amount to imperative requirements of public policy justifying exclusion
Art 49 TFEU
Extends Art 45 to the self-employed
Art 56 TFEU
Freedom of establishment: prohibits MS from adopting measures restrictive of an individuals ability to provide services
56 vs. 45 and 49
56 concerns those who are temporarily moving for work - to provide services - and then leave
Arts 45, 49 and 56
National criteria: applicant must be national of MS
Economic link: applicant is in some form of remunerated employment i.e. doesn’t work for nothing
negative interventions –> positive interventions
negative goal of non-discrimination –> securing of right to market access and enjoyment of movement right
Gerhart
Art 49 TFEU covers broad spectrum (could cover artists, craftsmen)
Art 7(3) CRD
Retention of “worker/self-employed” status:
a) temporarily incapacitated
b )involuntarily unemployed after > 1 year employment + registered as job seeker
c) involuntarily unemployed after < 1 year employment + registered as job seeker –> WORKER STATUS ONLY RETAINED FOR 6 MONTHS
d) Vocational training if related to previous employment
Art 45(3) TFEU
Right to... ... accept offers actually made ... move freely within territory of MS for this purpose ... stay in MS for purpose of employment ... remain after having been employed
Regulation 492/2011 - 2 rights
- Right to access a post of employment of non-discriminatory terms
- Right to equal treatment whilst doing that job (in broader sense –> exercising right to free movement)
Right to access post (492/2011)
(A) Direct discrimination
(B) Indirect discrimination
Language requirements usually justified: Art.3(1) Reg. 492/2011
(C) Non-discriminatory measures hindering market access
Right to equal treatment within employment (492/2011)
Art 7(1) (492/2011)
