Free Movement of Persons Flashcards
What did article 7A of the Single European Act 1986 aim to do? What happened instead?
Elimination of all border controls by Jan 1993, however this was heavily opposed by UK & Ireland, so a separate agreement was signed called The Schengen Agreement
What secondary legislation supplements article 45?
Regulation 492/2011 - rights of equal treatment
Directive 2004/38 - Citizenship Directive (Rights of entry & Residence)
What activity will fall under Article 45?
Walrave & Koch - Economic activity and having character of gainful employment.
· Economic activity (effective and genuine - Levin)
· Character of gainful employment (Lawrie-Blum test to define an employment relationship)
In short - Article 45 covers workers and nationals of member states
What happened in Walrave & Koch
Dutch nationals acting as professional pacemakers in motor-paced cycle races, and wanted to challenge the rules of the international body who regulated the races. - they discriminated on the basis of nationality.
CoJ - Article 45 applied to the rules of the international body as it regulated gainful employment
What happened in Levin?
British national applied for residence permit, refused by Dutch authorities because not in employment. She said her husband (who was a non-EU national) had sufficient resources, but as a precautionary measure got a job as a chambermaid for 20 hours a week. The 20 hours of work a week was not enough for them to live on.
The concept of worker - includes part time work provided the work is not nominal nor minimal, It does not matter if they earn less than what is required for subsistence.
What happened in Lawrie-Blum, what are the 3 limbs of the test?
British national went to Germany become teacher. Passed teaching exams, but denied admission to preparatory service stage grounds not a German national.
a) performs services
b) for and under the discretion of others
c) in return for remuneration (not necessarily a salary as held in Steymann)
What happened in Kempf, and precedent set?
What happened? :German music teacher working part-time, supplementing income through social security benefits. Application for Dutch residence permit refused grounds was using public funds, so was unable to sustain self.
Precedent: It doesn’t matter if a person supplements his income with benefits they can be still classed as a worker when in effective and genuine employment
Steymann
German religious nut who applied for residence permit on grounds was pursuing activity as an employed person. Carried out plumbing and household duties in return for pocket money, bed and board. Application was rejected on basis not an economic activity.
Relevant principles: work carried out in connection with the commercial activities of the religious group could amount to genuine and effective employment.
Bettray
drug addict on a rehabilitation programme to re-enter the world of work
ECJ held he was not in a genuine economic activity, even though it satisfied the Lawrie-Blum test. This was because the work was just a means of rehabilitation. The employment was purely ancillary to the primary objectives. Is a controversial decision, should be treated as unique to the circumstances.
Trojani
Controversial case - treated by the Grand Chamber of the CoJ
French national in Belgium given board and lodging in a Belgium Salvation Army hostel for 30 hours of week work, as part of a socio-occupational reintegration programme. Held to satisfy the Lawrie-Blum test, but it was left to the Belgian court to determine whether this was genuine and effective economic activity.
Hoekstra
The term ‘worker’ must be defined by EU law to keep consistency - not by national law.
Defined the right to rely on article 45(3)(d) TFEU and remain in the territory of a member state after having been employed and capable of taking up another job in the same country.
Does Article 45 extend to jobseekers?
Yes - confers a right to nationals of a member state to enter and reside another member state in order to look for work (Procureur du Roi v Royer)
R v Immigration Appeal Tribunal, ex parte Antonissen -
A Belgian dude was due to be deported from the UK as the poor sod had not secured employment after 6 months. CoJ held article 45 allows such people a reasonable amount of time to find work, and it shouldn’t be interpreted strictly to impede the free movement of persons. However, as a reasonable time limit is 6 months, the person in question must provide proof they are seeking employment & has a genuine chance of being engaged after this time limit.
This principle can be found in 14(4)(b) Directive 2004/38
Which treaty first introduced the concept of Union Citizenship?
Treaty of Maastricht in 1992 ow provided for by Article 20(1) TFEU
What type of person benefits the most from Union Citizenship status?
A non - economic active person as they can rely on the free movement rights conferred by Article 20 & 21 TFEU
What did Grzelczyk declare about union citizenship?
Union Citizenship is destined to be the fundamental status of nationals of member states to allow fair treatment in law irrespective of nationality
