Free Movement of Persons Flashcards
Article 45
1) Free movement of workers shall be secured
2) Abolition of discrimination based on nationality regarding employment
3) Derogations and specific rights
4) Public service exemption
Hoekstra
EU’s first definition of a ‘worker’: ‘broad, community-wide definition.’
Walgrave & Koch
Definition of ‘worker’:
1) Economic activity
2) Having character of gainful employment
Levin
1) An individual earning under the minimum for subsistence can still be considered a ‘worker’
2) To be considered a ‘worker’, activity must be genuine and effective; NOT marginal or ancillary
Lawrie-Blum
Defined an employment relationship:
1) Performs services
2) For or under the direction of another
3) In return for remuneration
Steymann
Example of an effective and genuine activity, qualified religious worker who carried out manual labour in return for cash and accommodation as a worker.
Kempf
Example of an effective and genuine activity, qualified a music teacher who earned below subsistence level and needed state support as a worker.
Bettray
Example of an ineffective and non-genuine activity, determined that drug addict undergoing work as part of rehab was not a ‘worker’ as the economic activity was secondary to social activities.
Royer
Established that Article 45 includes the right to enter and reside to look for work. Public policy, health and security exemptions may however be applied if justified.
Antonissen
Job-seekers may reside to look for work for reasonable period of time only; no expulsion where:
1) evidence that continuing to seek employment
2) and has genuine chance of being engaged
Articles 20 & 21
Covers Union Citizens (post 1992):
1) Right to move and reside freely
2) Subject to the limitations and conditions in the Treaties and secondary measures.
Grzelczyk
Union citizenship is destined to be the fundamental status of nationals of the Member States.
Directive 2004/38 2(2)
Defines ‘family members’
Sotgiu
Relates to Article 45(4) Public Service Exemption to Article 45:
1) It is not to be defined by the MS and cannot be used to discriminate against employees already in public service.
2) Indirect discrimination on employment rights can sometimes be justified objectively. Some workers here received higher allowances over shorter times, others had lower over longer times.
Commission v Belgium (Public Employees)
1) Article 45(4) Public Service Exemption is construed narrowly. Only for employees safeguarding the interests of the state.
2) In this case, railway posts not exempted while they determined that local authority posts would be exempted.
Abdoi & Cornuaille
Relates to Article 45 derogations:
1) Cannot be arbitrary deportation.
2) Domestic sex workers weren’t treated as harshly so cannot claim public morality.
Bonsignore
Relates to Article 45 derogations:
1) Cannot be used to deter others
2) Wanted to deter other foreign nationals from committing similar weapons offenses
Bouchereau
Relates to Article 45 derogations:
1) Criminal convictions are not grounds for deportation by themselves
2) Workers can only be excluded under Article 45(3) where they are ‘genuine, present and serious threat’
3) in this case, two minor drug offenses deemed not sufficiently serious.
Van Duyn
Relates to Article 45 derogations:
1) Restriction on free movement of persons on public policy grounds must be based on conduct
2) In this case the UK had wrongfully barred Dutch Scientologist from entering the country.
Article 27(1) Directive 2004/38
Expulsion must not serve economic ends
Article 28 Directive 2004/38
Additional safeguards for courts to consider when determining whether expulsion is justifiable.
Article 45(2)
Entails the abolition of any discrimination based on nationality between workers of the MS.
Regulation 492/2011 Chapter 1
Employment Rights
French Merchant Seamen
Relates to Employment Rights:
1) Direct discrimination cannot be justified through employment rights.
2) Article 45 is directly applicable
Ugliola
Relates to Employment Rights:
1) Indirect discrimination is prohibited
2) In this case Italian working in Germany wanted compulsory Italian military service to count towards employment seniority as it did in Germany for German nationals
Kraus
Relates to Employment Rights:
1) Non-discriminatory obstacles to access to employment are prohibited
2) German earned Masters in Scotland, wasn’t recognised in Germany. Deemed to fail proportionality test.
Bosman
Relates to Employment Rights:
1) Non-discriminatory obstacles to access to employment are prohibited
2) Footballer’s release clause unaffordable for club he wanted to move to in France. Unfair.
Groener
Relates to Employment Rights:
1) Rare example of successful application of Article 3(1) Reg 492/2011
2) Language requirement for teaching post in Ireland upheld because it was applied proportionately and not in a discriminatory manner.
Article 7(2) Regulation 492/2011
A worker who is a national of a MS shall enjoy the same social and tax advantages as national workers.
Collins
Relates to social and tax advantages under Article 7(2) Regulation 492/2011:
1) Job-seekers are NOT workers
Cristini
Relates to social and tax advantages under Article 7(2) Regulation 492/2011:
1) Article 7(2) includes all social advantages, whether or not attached to employment.
Inzirillo
Relates to social and tax advantages under Article 7(2) Regulation 492/2011:
1) these advantages extend to family members.
Martinez Sala
Articles 20 and 21 when read with Article 18 guarantee non-discrimination against Union citizens for social assistance. Sala was entitled to allowance to support her child even though she was not economically active, had lived in the MS since she was 12.
D’Hoop
Indirect discrimination on social assistance is unlawful unless it is objectively justified.
Article 24 Directive 2004/38
Right to equal treatment for Union citizens and family members except for social assistance for:
1) the first three months or
2) longer if seeking employment
Dano
A prohibition on discrimination on Union citizens is subject to the provisions in Directive 2004/38 that they do not become an ‘unreasonable burden’. Case involved Romanians in Germany without work attempting to rely on social security benefits.
Access to Education
1) Vocational Schools
2) Vocational Training
3) Children of Workers included
Education Grants
1) Grants for workers available
2) Grants also available for children of workers
Brown
Defined ‘vocational schools’ as:
1) Establishments which provide only instruction interposed between periods of employment or loosely connected with employment, particularly during apprenticeship.
2) Does NOT include universities.
Article 128 EEC Treaty
Council laid down general principles for ‘implementing a common vocational training policy capable of contributing to the harmonious development both of the national economy and of the common market’.
Gravier
1) Provided a broad definition of vocational training:
- 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.
2) Discrimination on ground of nationality prohibited in respect of access to vocational training.
Blaizot
Relates to vocational training:
1) University does NOT generally fulfill conditions.
Casagrande
Relates to Article 10 Regulation 492/2011:
1) encompasses not only rules relating to admission
2) also encompasses general measures intended to facilitate educational attendance
Echternach
Relates to Article 10 Regulation 492/2011:
1) Includes all forms of education including:
- universities
- technical colleges
Brown
2) Not entitled to a grant where employment is ancillary to studies
Lair
1) maintenance and trying grant = social advantage
2) only a worker can claim these. Includes:
- where there is an employment relationship; or
- where there is a relationship between the purpose of the studies and previous occupational activity; or
- where has involuntarily become unemployed and is obliged by market conditions to undertake occupational retraining in another field of activity
Echternach
Education grants = social advantages, extended to children of workers.
Bidar
Extends treaty to include education grants for citizens.
Forster
Ruled the 5 year residence requirement was okay for citizenship to be gained.
