Free Movement of Persons

Question 1

Walrave and Koch

Answer 1

A worker is someone engaged in economic activity having the character of gainful employment.

Question 2

Union Royal Belge des Societies de Football Association ASBL

Answer 2

A worker is someone engaged in economic activity having the character of gainful employment.

Question 3

Hoekstra

Answer 3

‘Worker’ must be given a Union meaning.

Question 4

Lawrie-Blum

Answer 4

Employment relationship:

• Individual provides services
• For/under the direction of another
• In return for remuneration

Question 5

Levin

Answer 5

Economic activity must be effective and genuine, not marginal or ancillary.
This includes part-time work provided the work is neither nominal nor minimal

Question 6

Kempf

Answer 6

A person who supplements their income with social security payments is still a worker as long as their work is genuine and effective economic activity.

Question 7

Steymann

Answer 7

Economic activity must be effective and genuine, not marginal or ancillary.

Question 8

Betray

Answer 8

If work is primarily a means of rehabilitation or reintegration it will be considered marginal or ancillary.

Question 9

Trojani

Answer 9

Betray should be treated as specific to the particular facts of the case.

Question 10

Royer

Answer 10

Article 45 TFEU confers a right on nationals of a MS to enter and reside in the territory of another MS to look for work.

Question 11

Antonissen

Answer 11

Article 45 TFEU confers a right on nationals of a MS to enter and reside in the territory of another MS to look for work. However, this can be subjected to a temporal limitation. 6 months was held to be a reasonable time. After this period, the individual can be asked to leave unless he can provide evidence that he is continuing to seek employment and that he has genuine chances of being engaged.

Question 12

Grzelczyk

Answer 12

‘Union citizenship is destined to be the fundamental status of nationals of the Member States’.
By reading Arts 18 and 20 TFEU in conjunction, Union Citizens who are lawfully resident in a MS have the right to equal treatment in all fields covered by the Treaties, including social assistance.
Principle of equal treatment for Union citizens provided by Article 20 TFEU read in conjunction with Article 18 TFEU applies to social security benefits available to national students.

Question 13

Netherlands State v Reed

Answer 13

The right of a non-national who lives together with a national in a stable relationship to reside in the host State if this is available to national workers is a social advantage.

Question 14

Diatta

Answer 14

There is no obligation for family members to reside under the same roof. A spouse of a Union Citizen may remain resident in MS until marriage is legally terminated.

Question 15

French Merchant Seamen

Answer 15

Direct discrimination against workers from another MS is prohibited.

Question 16

Ugliola

Answer 16

Indirect discrimination against workers from another MS is prohibited.

Question 17

Sotgiu

Answer 17

Indirect Discrimination:
Indirect discrimination against workers from another MS can be objectively justified.
Discrimination on the grounds of place of residence is a form of indirect discrimination.

Public Service Exemption:
It is not for Member States to determine the scope of the public service exemption.
Article 45(4) cannot be relied upon to justify measures which discriminate against nationals of other Member States once they have been already admitted to the public service.

Question 18

Groener

Answer 18

Indirect discrimination against workers from another MS can be objectively justified.

Question 19

Kraus

Answer 19

Art 45 prohibits measures which impede access to the employment market without being either directly or indirectly discriminatory on the basis of nationality.

Question 20

Bosman

Answer 20

Art 45 prohibits measures which impede access to the employment market without being either directly or indirectly discriminatory on the basis of nationality.

Question 21

Gul

Answer 21

A family member exercising the right to work under Article 23 of Directive 2004/38 should also be able to benefit from other rights governing eligibility for employment and the conditions of employment enjoyed by workers.

Question 22

Collins

Answer 22

A jobseeker is not a worker for the purposes of Art 7(2) of Regulation 492/2011. Thus, a jobseeker is not entitled to the same social and tax advantages as nationals off the host MS on the basis of that article.
A jobseeker may be able to rely on Union citizenship to claim entitlement to social advantages.

Question 23

Cristini

Answer 23

Art 7(2) Regulation 492/2011 includes ‘all social and tax advantages, whether or not attached to the contract of employment’. 
Members of a worker’s family can qualify indirectly for the right under Art 7(2).

Question 24

Reina

Answer 24

Discretionary child birth loans are a social advantage.

Question 25

Hoeckx

Answer 25

Minimum income allowance is a social advantage

Question 26

O’Flynn

Answer 26

Funeral expenses benefits are a social advantage.

Question 27

Even

Answer 27

Social advantages are limited to those granted to workers primarily because of their objective status as workers or by virtue of their residence on the national territory.

Question 28

Inzirillo

Answer 28

Members of a worker’s family can qualify indirectly for the right under Art 7(2), even in relation to a right which only they qualify for.

Question 29

Martinez Sala

Answer 29

By reading Art 18 and 20 TFEU in conjunction, Union Citizens who are lawfully resident in a MS have the right to equal treatment in all fields covered by the Treaties, including social assistance.

Question 30

D’Hoop

Answer 30

Arts 20 and 18 TFEU read in in conjunction can prohibit discrimination by a MS against one of its own nationals where that discrimination resulted from the national of the MS exercising their right as a Union Citizen to reside in another MS.
Indirect discrimination can be objectively justified.

Question 31

Dano

Answer 31

Prohibition on discrimination against Union Citizens provided by Articles 20 and 21 TFEU read in conjunction with Art 18 TFEU is to be exercised subject to the conditions and limitations laid down by Art 24 of Directive 2004/38.

Question 32

Gravier

Answer 32

Vocational training: any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment … whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education.

Question 33

Blaziot

Answer 33

University education generally satisfied the definition of vocational training.

Question 34

Lair

Answer 34

Maintenance and training grants are social advantages within the meaning of Art 7(2) of Regulation 492/2011. Any entitlement to a grant is dependent on the person having the status of a worker. A person will retain the status of worker if there is a link between their previous employment and later studies.

Question 35

Brown

Answer 35

Vocational schools: establishments which provide only instruction interposed between periods of employment or else closely connected with employment, particularly during apprenticeships.
Grants to students for maintenance and training fall outside of the scope of the treaty as educational policy has not been entrusted to the Community.
Workers are not entitled to education grants where their employment is ancillary to their studies.

Question 36

Casagrande

Answer 36

The phrase ‘admitted under the same conditions’ in Art 10 Reg 492/2011 refers not only to admission but also to general measures intended to facilitate educational attendance, including educational grants.

Question 37

Echternach

Answer 37

The principle of equal treatment for the children of migrant workers under Art 10 extends to all forms of education.
The child of a migrant worker who had been studying in the host State retained his rights under Article 10 where his working parent, having been employed in the host State, had now returned to the State of Origin and the child, having been unable to pursue his studies in the State of origin, was required to remain and complete his education in the host State.
Children of migrant workers are entitled to education grants under the same conditions as the host Member State’s own nationals.

Question 38

Bidar

Answer 38

Educational policy is within the scope of the Treaty.
A Union citizen who enjoyed the right of residence in the UK under Article 20 TFEU had a right to equal treatment under Article 18 TFEU in respect of student grants and loans.
Indirect discrimination can be justified by a need to ensure that maintenance costs of students from other States do not become an unreasonable burden on the State. Consequently, a MS can limit assistance to students who demonstrate a certain degree of integration into MS.

Question 39

Forster

Answer 39

Five years’ continuous residence is not an excessive period to determine sufficient integration.

Question 40

Van Duyn

Answer 40

National measures must be based exclusively on the personal conduct of the individual concerned.

Question 41

Adoui and Cornuaille

Answer 41

Deportation must not be arbitrary

Question 42

Bonsignore

Answer 42

Deportation cannot be effected for the purpose of deterring others.

Question 43

Bouchereau

Answer 43

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
Past criminal convictions are not, in themselves, a ground for deportation

Question 44

Rutili

Answer 44

Exclusion must be compatible with fundamental human rights.

Question 45

Orfnopoulos

Answer 45

Fundamental rights must be taken into account in determining whether or not a measure which restricts the free movement of a person can be justified on the ground of public policy or security.

Question 46

Commission v Belgium (Public Employees)

Answer 46

Article 45(4) removes from Art 45 TFEU: ‘a series of posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the state or of other public authorities. Such posts in fact presume on the part of those occupying them the existence of a special relationship of allegiance to the state and reciprocity of rights and duties which form the foundation of the bond of nationality’.

Question 47

Commission v France (French Nurses)

Answer 47

Nurses in public hospitals are not included in Art 45(4).