Free Movement of Persons

Question 1

Walrave & Koch v Association Union Cycliste Internationale

Answer 1

CofJ held that the practice of sport is subject to Article 45 TFEU, albeit only in so far as it constitutes an economic activity having the character of gainful employment.
ALSO this case provided the employment relationship definition of a worker under art 45: CofJ held that an activity will come within Art.45 where it constitutes an economic activity having the character of gainful employment.

Question 2

Union Royal Belge des Sociétés de Football Association ASBL v Jean Marc Bosman

Answer 2

the activities of professional and semi-professional footballers who are in gainful employment have also been held to fall within Article 45 TFEU
Also in this case - Court of Justice has extended its interpretation of Article 45 TFEU further so as to prohibit measures which impede access to the employment market without being either directly or indirectly discriminatory on the basis of nationality.

Question 3

Lawrie-Blum v Land Baden-Württeberg

Answer 3

answers question of what we mean by gainful employment- CofJ identified 3 essential criteria for employment relationship in Lawrie - the individual must (a) perform services; (b) for and under the direction of another; and (c) in return for remuneration. The individual’s particular designation is irrelevant.

trainee teachers in state schools also fall outside the scope of Article 45(4)

Question 4

Levin v Staatssecretaris van Justitie

Answer 4

this case address the question of the nature of the economic activity CofJ held ‘…the rules governing the free movement of workers cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as marginal or ancillary.’

Question 5

Kempf v Staatssecretaris van Justitie

Answer 5

the concept of a ‘worker’ includes part-time employment provided the work is neither nominal nor minimal BUT this case shows that this is also the case where the person supplements his income by recourse to social security benefits provided by the Member State.

Question 6

Steymann v Staatssecretaris van Justitie

Answer 6

Work carried out in connection with the community’s commercial activities could also amount to a genuine and effective economic activity

Question 7

Bettray v Staatsecretaris van Justitiet

Answer 7

this case is an exception to worker- When the primary purpose of the economic activity is for purposes other than social objectives set out e.g. if the work is a means of rehabilitation or reintegration

Question 8

Trojani

Answer 8

the CofJ confined Bettray to the particular circumstances of that case. In Trojani, a French national who, as part of a personal socio-occupational reintegration programme in Belgium, was given accommodation in a Salvation Army hostel where he did various jobs for about 30 hours a week in return for board and lodging and some pocket money was held to satisfy the Lawrie-Blum test but the Grand Chamber left it to the Belgian court to determine whether or not on the facts the paid activity was an effective and genuine economic activity.

Question 9

Procureur du Roi v Royer

Answer 9

Art 45 confers a right on nationals of a Member State to enter and reside in the territory of another Member State in order to look for work.

Question 10

R v Immigration Appeal Tribunal, ex parte

Answer 10

case added the qualification that it is subject to temporal limitation: a Member State could require a national of another Member State to leave the territory of that State if he has not found employment there after six months unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.

Question 11

Martínez Sala v Freistaat Bayer

Answer 11

Unlike workers, Union citizens do not have to be economically active to benefit from free movement rights. CofJ held that a Union citizen who was lawfully resident in the host Member State had a right under Article 18 TFEU not to suffer discrimination on the ground of nationality in all situations which fall within the scope of the Treaty. Consequently, Germany could not refuse to grant to her the child raising allowance on the ground that she was not in possession of a residence permit as German nationals were not required to have a residence permit.

Question 12

Grzelczyk v Centre Public d’Aide Sociale

Answer 12

Sociale the Court of Justice even went so far as to declare that Union Citizenship is destined to be the fundamental status of nationals of the member states.

Question 13

Dano

Answer 13

Arts 20&21 limited by directive 2004.38

Question 14

Diatta v Land Berlin

Answer 14

There is no obligation for the family members to reside under the same roof as the citizen AND the rights of a spouse will remain unaffected by separation from the Union citizen so long as the marriage has not been dissolved. 


Question 15

Jia v Migrationjverket

Answer 15

the Court of Justice defined a ‘dependant’ as someone who needs the material support of the Union citizen in order to meet their essential needs in their State of origin or the State from which they have come at the time when they apply to join that Union citizen.

Question 16

Coman v Inspectoratul General Pentru Imigrări

Answer 16

Court of Justice noted that the term ‘spouse’ in Article 2(2)(a) was gender neutral and held that a spouse who was in a same-sex marriage with a Union citizen could benefit from free movement rights as a family member of that Union citizen even in a Member State in which same-sex marriages were not recognised by domestic law

Question 17

Commission v France (French Merchant Seamen

Answer 17

Direct discrimination arises where workers from other Member States are overtly treated less favourably than nationals of the host Member State. The Court of Justice held that the right to free movement of workers extended to sea transport and that the ministerial order breached Article 45 TFEU and Article 4 of Regulation 492/2011. CAN NEVER BE JUSTIFIED

Question 18

Ugliola

Answer 18

Indirect indiscrimination arises when a rule relating to employment is neutral in terms of nationality but in practice it affects non-national workers more severely than nationals. The Court of Justice held that this breached Article 45 TFEU as it indirectly discriminated against workers from other Member States who undertook military service in their country of origin.

Question 19

Sotgiu v Deutsche Bundespost

Answer 19

indirect discrimination justified on grounds of public interest (so isn’t prohibited under Art 45)

Question 20

Groener v Ministry for Education

Answer 20

indirect discrimination justified on grounds of Art 45 not applying to conditions relating to the linguistic knowledge required by reason of the nature of the post to be filled.’ - Article 3(1) of Regulation 492/2011

Question 21

Gül v Regierungspräsident Düsseldorf

Answer 21

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

Collins v Secretary of State for Work and Pensions –Worker does not extend to jobseekers- Pensions for the purposes of social and tax advantages

Question 22

Cristini v S.N.C.F

Answer 22

Cof J held that Article 7(2) includes:

‘all social and tax advantages, whether or not attached to the contract of employment’

Question 23

Reina v Landeskreditbank Baden-Württemberg

Answer 23

‘social advantages’ have been taken to include: Discretionry childbirth loans.

Question 24

Hoeckx v Centre Public d’Aide Sociale de Kalmthout

Answer 24

‘social advantages’ have been taken to include: Minimum income allowance

Question 25

Reed

Answer 25

‘social advantages’ have been taken to include 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

Question 26

O’Flynn v Adjudication Officer

Answer 26

‘social advantages’ have been taken to include Funeral expenses benefits

Question 27

Ministère Public v Evans

Answer 27

Cof J emphasised that the ‘social advantages’ are confined to: 
‘… those which, whether or not linked to a contract of employment, are generally granted to workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory.’ 


Question 28

Inzirillo v Caisse d’Allocations

Answer 28

Court of Justice went one step further than Cristini by holding that the right under Article 7(2) extended to a social advantage which the family member alone qualified for.

Question 29

D’Hoop v Office National de l’Emploi

Answer 29

the Court of Justice held that Article 20 TFEU, when read with Article 18 TFEU, could also prohibit discrimination by a Member State against one of its own nationals where that discrimination resulted from the national of the Member State exercising her right as a Union citizen to reside in another Member State.

Question 30

Collins

Answer 30

objectively justifiable for a member state to grant jobseekers allowance only after it was justifiable that there was a genuine link between the person seeking work and the employment market of that state.

Question 31

Dano and Dano v Jobcenter Leipzig

Answer 31

Arts 20& 21 TFEU limited by Directive 2004/38

Question 32

Brown v Secretary of State

Answer 32

CofJ defined the term ‘vocational schools’ as referring solely to ‘establishments which provide only instruction interposed between periods of employment or else closely connected with employment, particularly during apprenticeships’. It added that this is not the case as far as universities are concerned.

Question 33

Gravier v City of Liège Art 166 TFEU)

Answer 33

Even though the treaty itself made no reference to any right of access to vocational training, the Court of Justice established such a right in this case Liège This case concerned a student of French nationality who was charged an enrolment fee for a higher education course in strip cartoon art in Belgium. Belgian students were not required to pay this. The Court of Justice held that a course in strip cartoon art was a form of vocational training. The Court of Justice held that vocational training fell within the scope of the treaty by using a teleological approach. First, it noted that access for workers to vocational schools and retaining centres was already provided by Article 7(3) of Regulation 492/2011.
Next, the Court observed that the Council was empowered by Article 128 of the EEC Treaty to lay general principles for implementing a common vocational training policy and that the Council was gradually establishing such a policy.

Question 34

Blaizot v University of Liège

Answer 34

the Court of Justice held that University education will generally satisfy the definition of vocational training.

Question 35

Lair v Universität Hannover and Brown v Secretary of State for Scotland

Answer 35

together established the following principles:

1. In Brown, the Court of Justice held that grants to students for maintenance and training fell outside the scope of the treaty as educational policy has not been entrusted to the Community. Consequently, the principle of non-discrimination under Article 18 TFEU was not applicable. This conclusion stood in stark contrast to the earlier approach to fees in Gravier. 

2. Nevertheless, in Lair, the Court of Justice held that maintenance and training grants were social advantages within the meaning of Article 7(2) of Regulation 492/2011. This meant that any entitlement to a grant under that article would be dependent on the person having the status of a worker. Yet the Court of Justice was not prepared to confine this just to persons in a continuing employment relationship. It held that a person who is no longer in an employment relationship will retain the status of a worker for the purpose of qualifying for a grant if there is a link between their previous employment and the later studies. This presupposed a relationship between the purpose of the studies and the previous employment, although that would not be required if the person had become involuntarily unemployed and needed to retrain in another area field. 

3. However, the Court of Justice qualified this in Brown. Despite accepting that the claimant in that case had been a worker within the meaning of Article 7(2) of Regulation 492/2011 whilst undertaking his work placement, it held that he could not rely on Article 7(2) as his status as a worker had been acquired exclusively as a result of his being accepted for admission to university to undertake the studies in question. He would not have been employed by his employer if he had not already been accepted for admission to university. In such circumstances, the employment relationship was merely ancillary to the studies to be financed by the grant. In taking this approach, the Court of Justice has been able to guard against students undertaking a short period of casual work and then using this as the basis for claiming an entitlement to educational grants. 


Question 36

Casagrande v Landeshauptstadt

Answer 36

in relation to Art10. the Court of Justice held that it referred not only to admission but also to general measures intended to facilitate educational attendance. This included educational grants. 


Question 37

Echternach and Moritz

Answer 37

A wide interpretation of Article 10 was also provided by the Court of Justice in this case, which was decided a year after Lair and Brown.. The Court held the following:
o The principle of equal treatment for the children of migrant workers under Article 10 extends to all forms of education, including courses at Universities and technical colleges. 

o 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. 

o The Court reiterated that the children of migrant workers where entitled to educational grants under the same conditions as the host Member State’s own nationals. It observed, with reference to Article 7(2) of Regulation 492/2011, that educational grants were social advantages. 


Question 38

Grzelczyk v Centre Public d’Aide Sociale

Answer 38

The decision in Grzelczyk made it clear that the principle of equal treatment for Union citizens provided by Article 20 TFEU read in conjunction with Article 18 TFEU applied to social security benefits which were available to national students. In doing so, the Court had distinguished social security benefits from maintenance grants. This raised the question as to whether or not entitlement to maintenance grants continued to be confined to the principles in Brown and Lair.

Question 39

R (Bidar) v Ealing LBC

Answer 39

The Court of Justice repeated that educational policy now lay within the scope of the treaty. It held that Article 3 of Directive 93/96 merely provided that the Directive itself cannot provide the basis for a right to payment of maintenance grants. Consequently, a Member State could limit assistance only to students who demonstrated a certain degree of integration into the society of that Member State and it could do so by requiring that the student had resided there for a certain length of time.

Question 40

Förster v Hoofddirectie van de Informatie Beheer Groep

Answer 40

Court of Justice held that a condition of five years’ continuous residence could not be seen as excessive in order to ensure the degree of integration of migrants in the host Member State.

Question 41

Van Duyn v Home Office

Answer 41

The Court of Justice declared that the public policy derogation had to be interpreted strictly. Nevertheless, it held that an individual’s present association with an organisation could be considered personal conduct because it reflects participation in the activities of the organisation and identification with its aims. Cof J made it clear in this case that the public policy derogation can be relied upon by a Member State to discriminate against nationals of other member states.

Question 42

Adoui and Cornuaille

Answer 42

the Court of Justice held that it was arbitrary to rely on the derogation of public policy and public security to expel or refuse admission to nationals of another Member State by reason of their conduct where its own nationals would not be subject to repressive measures intended to combat the same conduct.

Question 43

Bonsignore v Oberstadtdirektor der Stadt Köln

Answer 43

The Court of Justice emphasised that measures adopted on the grounds of public policy and public security could not be justified on the basis of factors extraneous to the individual case. A deportation order may only be made for breaches of the peace and public security which might be committed by the individual affected. It could not be ordered for the purpose of deterring others

Question 44

R v Bouchereau-

Answer 44

Cof J held that the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and that past criminal convictions are not, in themselves, a ground for deportation- Court ensured that a single conviction can provide a good ground for deportation in exceptional circumstances where it reveals the person concerned to be a present danger to society and so it is not necessary to show a tendency for him to offend again.

Question 45

Rutili v Minister for the Interior

Answer 45

Court of Justice held that the substantive limitations to the public policy derogation were specific manifestations of the more general principle, enshrined in Articles 8 to 11 of the European Convention of Human Rights, that restrictions on fundamental human rights must be ‘necessary in a democratic society’, that is to say that it has to be proportionate. The Court concluded that a prohibition on residence which is justified on the ground of public policy derogation may be imposed only in respect of the whole of the national territory.

Question 46

Orfanopoulos v Land Baden-Württemberg

Answer 46

Court of Justice held that the right to respect for family life guaranteed by Article 8 of the ECHR had to be taken into account as he was being removed from a Member State where close members of his family are living. It also emphasised that the principle of proportionality must be observed.

Question 47

Sotgiu v Deutsche Bundespost

Answer 47

CofJ made it clear that it was not for Member States to define the scope of the public service exemption and that 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 48

Commission v Belgium (‘Public Employees’

Answer 48

Scope of the public service exemption defined- It held that Article 45(4) removes from Article 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’.

In this case it was held that the posts of head technical office supervisor, principal supervisor, works supervisor, stock controller, night watchman and architect at the local authorities did fall within the public service exemption. But all of advertised posts within Belgian national railway companies did not.

Question 49

Commission v France ‘French Nurses’

Answer 49

nurses in public hospitals fall outside of the scope of Article 45(4)