Free Movement of Persons

Question 1

Article 45

Answer 1

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

Question 2

Hoekstra

Answer 2

EU’s first definition of a ‘worker’: ‘broad, community-wide definition.’

Question 3

Walgrave & Koch

Answer 3

Definition of ‘worker’:

1) Economic activity
2) Having character of gainful employment

Question 4

Levin

Answer 4

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

Question 5

Lawrie-Blum

Answer 5

Defined an employment relationship:

1) Performs services
2) For or under the direction of another
3) In return for remuneration

Question 6

Steymann

Answer 6

Example of an effective and genuine activity, qualified religious worker who carried out manual labour in return for cash and accommodation as a worker.

Question 7

Kempf

Answer 7

Example of an effective and genuine activity, qualified a music teacher who earned below subsistence level and needed state support as a worker.

Question 8

Bettray

Answer 8

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.

Question 9

Royer

Answer 9

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.

Question 10

Antonissen

Answer 10

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

Question 11

Articles 20 & 21

Answer 11

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.

Question 12

Grzelczyk

Answer 12

Union citizenship is destined to be the fundamental status of nationals of the Member States.

Question 13

Directive 2004/38 2(2)

Answer 13

Defines ‘family members’

Question 14

Sotgiu

Answer 14

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.

Question 15

Commission v Belgium (Public Employees)

Answer 15

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.

Question 16

Abdoi & Cornuaille

Answer 16

Relates to Article 45 derogations:

1) Cannot be arbitrary deportation.
2) Domestic sex workers weren’t treated as harshly so cannot claim public morality.

Question 17

Bonsignore

Answer 17

Relates to Article 45 derogations:

1) Cannot be used to deter others
2) Wanted to deter other foreign nationals from committing similar weapons offenses

Question 18

Bouchereau

Answer 18

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.

Question 19

Van Duyn

Answer 19

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.

Question 20

Article 27(1) Directive 2004/38

Answer 20

Expulsion must not serve economic ends

Question 21

Article 28 Directive 2004/38

Answer 21

Additional safeguards for courts to consider when determining whether expulsion is justifiable.

Question 22

Article 45(2)

Answer 22

Entails the abolition of any discrimination based on nationality between workers of the MS.

Question 23

Regulation 492/2011 Chapter 1

Answer 23

Employment Rights

Question 24

French Merchant Seamen

Answer 24

Relates to Employment Rights:

1) Direct discrimination cannot be justified through employment rights.
2) Article 45 is directly applicable

Question 25

Ugliola

Answer 25

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

Question 26

Kraus

Answer 26

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.

Question 27

Bosman

Answer 27

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.

Question 28

Groener

Answer 28

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.

Question 29

Article 7(2) Regulation 492/2011

Answer 29

A worker who is a national of a MS shall enjoy the same social and tax advantages as national workers.

Question 30

Collins

Answer 30

Relates to social and tax advantages under Article 7(2) Regulation 492/2011:
1) Job-seekers are NOT workers

Question 31

Cristini

Answer 31

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.

Question 32

Inzirillo

Answer 32

Relates to social and tax advantages under Article 7(2) Regulation 492/2011:
1) these advantages extend to family members.

Question 33

Martinez Sala

Answer 33

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.

Question 34

D’Hoop

Answer 34

Indirect discrimination on social assistance is unlawful unless it is objectively justified.

Question 35

Article 24 Directive 2004/38

Answer 35

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

Question 36

Dano

Answer 36

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.

Question 37

Access to Education

Answer 37

1) Vocational Schools
2) Vocational Training
3) Children of Workers included

Question 38

Education Grants

Answer 38

1) Grants for workers available

2) Grants also available for children of workers

Question 39

Brown

Answer 39

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.

Question 40

Article 128 EEC Treaty

Answer 40

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’.

Question 41

Gravier

Answer 41

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.

Question 42

Blaizot

Answer 42

Relates to vocational training:

1) University does NOT generally fulfill conditions.

Question 43

Casagrande

Answer 43

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

Question 44

Echternach

Answer 44

Relates to Article 10 Regulation 492/2011:

1) Includes all forms of education including:
- universities
- technical colleges

Question 45

Brown

Answer 45

2) Not entitled to a grant where employment is ancillary to studies

Question 46

Lair

Answer 46

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

Question 47

Echternach

Answer 47

Education grants = social advantages, extended to children of workers.

Question 48

Bidar

Answer 48

Extends treaty to include education grants for citizens.

Question 49

Forster

Answer 49

Ruled the 5 year residence requirement was okay for citizenship to be gained.