Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

EU > Free Movement of Persons > Flashcards

Free Movement of Persons Flashcards

1
Q

What does Article 45 TFEU provide?

A
  • Free Movement for Workers shall be secured
  • Abolition of Discrimination based on nationality regarding employment
  • Provides the right to:
    • Accept offers of employment actually made
    • Move freely within Member States for this purpose
    • Stay in a Member State for purposes of employment
    • Remain in the territory of a Member State having been employed in that state
  • Subject to limitations justified on grounds of public policy, public security or public health
  • Provisions don’t apply to employment in the public service
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Walrave v Koch [1974]

A

A worker must be engaged in an economic activity having the character of gainful employment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Hoekstra [1964]

A

Concept of a worker is to be given an EU law meaning and not left to the Member State.

Ensures consistency across Member States

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Lawrie-Blum [1986]

A

For an employment relationship a person must:

  • a.) performs services
  • b.) for and under the direction of another
  • c.) in return for remuneration.
  • Trainee teacher in Germany met requirements so to refuse admission to training was a breach of Art 45.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Levin [1982]

A

Article 45 only covers pursuit of effective and genuine activities and not activities regarded as marginal or ancillary.

Ensures a ‘worker’ includes part-time employment provided work is not nominal or minimal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Kempf [1986]

A

A person in effective and genuine part-time employment cannot be excluded from application of rules of freedom of movement and Article 45 because his remuneration is below the level of the minimum means of subsistence and is supplemented by other lawful means of subsistence, including welfare.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Steymann [1988]

A

Plumbing/janitorial work and taking part in odd job commercial activities in return for food/pocket money and accommodation will amount to genuine and effective activity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Bettray [1989]

A

Where the purpose of employment is rehabilitory, any economic activity involved will be considered ancillary to the primary social objectives and is not protected by Article 45.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Trojani [2004]

A

COJ confined Bettray to particular circumstances of that case.

Held that working 30 hours a week in return for board, lodging and some pocket money as part of a reintegration programme satisfied the Lawrie-Blum test.

However, Grand Chamber left it to Belgian court to decide whether was an effective and genuine economic activity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Royer [1976]

A

Confides a right on nationals of a Member State to enter and reside in the territory of another Member State to look for work.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Antonissen [1991]

A

Confirmed the right of nationals of a Member State to move freely within other Member States for the purposes of seeking employment.

However, Member State can require individual to leave if he has not found work after a reasonable period of time, six months, unless can demonstrate he is still looking for employment and has a reasonable chance of being engaged.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Articles 20 and 21 TFEU

A

Provide Union Citizens with the right to move and reside freely in the Member States.

This is subject to the limitations and conditions in the Treaties and secondary measures.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Grzelczyk [2001]

A

Union citizenship is destined to be the fundamental status of nationals of the Member States enabling those to find themselves in the same situation to have the same treatment in law regardless of nationality.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Directive 2004/38 Art 2

A

Defines a family member as:

Art 2(2)(a) – Spouse

Art 2(2)(b) – Registered Partner

Art 2(2)(c) – Direct descendants under 21 or dependent

Art 2(2)(d) – Dependent direct relatives in the ascending line

Same freedom of movement rights as worker.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Coman v Inspectoratul General Pentru Imigrari [2018]

A

A spouse 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 where same-sex marriages were not recognised under domestic law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Directive 2004/38 Art 3

A

Defines other beneficiaries as:

  • Art 3(2)(a) – Other family member where:
  • Dependent
  • Member of household
  • Serious health grounds
  • Art 3(2)(b) – Any partner with whom Union Citizen has ‘durable relationship, duly attested’ MS under obligation under Art 3 to facilitate entry and residence of beneficiaries.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Jia v Migrationjverket [2007]

A

Dependent is someone who needs material support of Union citizen to meet their essential needs.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Directive 2004/38 Art 5(1)

A

Union Citizens and family members may leave home Member State and enter host Member State simply on production of a valid passport or identification card.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Directive 2004/38 Art 5(2)

A

A non-EU family member may require a visa in addition to valid passport in accordance with Reg 539/2001 or where appropriate, within national law.

BUT Member States must offer every facility of obtaining one.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Directive 2004/38 Art 6(1)

A

Union citizens and family members accompanying them may reside for up to 3 months without any conditions other than holding a valid passport or identitiy card.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Directive 2004/38 Art 6(2)

A

Non-EU family members accompanying them may reside for up to 3 months without any conditions other than holding a valid passport or identity card.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Directive 2004/38 Art 14(1)

A

Right to reside for 3 months will be lost if they become an unreasonable burden on the social assistance system of the host Member State.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Diatta v Land Berlin [1985]

A

No obligation for family members to reside under the same roof as the citizen.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Directive 2004/38 Art 7

A

Art 7 provides right of residence in Member State for longer than 3 months if:

Art 7(1)(a) – Workers or self-employed

Art 7(1)(b) – Sufficient Resources and Sickness Insurance

Art 7(1)(c) – Enrolled Student

Art 7(1)(d) – Family Member accompanying or joining Union citizen

Art 7(2) extends to non-EU family member if meet criteria in a,b,c

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Directive 2004/38 Art 14(4)(b)

A

Union citizen cannot be expelled by host Member State so long as can prove he entered to seek employment, can prove he is continuing to, and has a genuine chance of being engaged.

Codifies decision in Antonissen.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Directive 2004/38 Art 7(3)

A

A Union citizen who was a worker or self-employed may retain their retain status where they are temporarily unable to work as a result of:

  • illness/accident
  • involuntary unemployment and registration as job seeker.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Diatta v Land Berlin [1985]

A

Rights of a spouse will remain unaffected by separation from Union Citizen so long as marriage has not been dissolved.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Directive 2004/38 Art 13(1)

A

Divorce will not affect rights of Union citizen’s family members who are nationals of a Member State.

Can still acquire permanent residence after 5 years if satisfy economic independence conditions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Directive 2004/38 Art 13(2)

A

Allows retention of rights of residence of divorced family members who are non-EU nationals where:

13(2)(a) – marriage/registered partnership lasted 3 years pre-termination with 1 year in host Member State

13(2)(b) – spouse has custody of children

13(2)(c) – result of domestic violence

13(2)(d) – access to a minor in host State

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Directive 2004/38 Art 12

A

Allows retention of residence for family member in event of death or departure of Union citizen

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Directive 2004/38 Art 16(1)

A

A Union citizen can gain permanent residence if legally resided in host Member State for continuous period of 5 years.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Directive 2004/38 Art 16(2)

A

A Non-EU family member can gain permanent residence if legally resided in host Member State with Union citizen for continuous period of 5 years.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Directive 2004/38 Art 16(4)

A

Permanent residence can only be lost through absence from Member State for period exceeding 2 consecutive years.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Directive 2004/38 Art 17

A

Right of permanent residence can be acquired before 5 years if worker:

17(1)(a) – reached pension age or retired

17(1)(b) – has a permanent incapacity to work

17(1)(c) – resident in host Member State but working in another Member State

17(3) – family member also gains permanent residence

35
Q

Art 45(2) TFEU

A

Free movement of workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

36
Q

Art 45(3)(a) TFEU

A

Regulates right of nationals of Member States to accept job offers.

37
Q

French Merchant Seamen [1974]

A

Direct discrimination can never be justified.

A ministerial order imposing a ratio of 3 French to 1 foreign national on ships of the merchant fleet amounted to direct discrimination and breached Article 45 TFEU and Article 4 of Regulation 492/2011

38
Q

Ugliola [1970]

A

Extended prohibition to indirect discrimination.

West German law only considering military service undertaken in West Germany when determining seniority in employment indirectly discriminated against workers from other Member States who undertook military service in country of origin.

39
Q

Sotgiu [1974]

A

Possible to justify indirect discrimination on objective public interest grounds.

40
Q

Groener [1989

A

Application of Article 3(1) of Regulation 492/2011 which prohibits discrimination in respect of job offers but does not apply “to conditions relating to linguistic knowledge required for the post”.

Dutch teacher rejected for a job as a teacher in Ireland as had failed a beginner’s course in Gaelic.

41
Q

Bosman [1995]

A

Extended prohibition to indistinctly applicable measures which do not discriminate on the basis of nationality but impede access to the employment market.

However, can be justified on objective public interest grounds - pressing reasons of public interest. Have to be proportionate to be lawful.

42
Q

Directive 2004/38 Art 38

A

Family members of a Union citizen have the right to take up employment or self-employment. Extends to non-EU family members.

43
Q

Gul [1986]

A

Provides spouse with the right to employment under the same conditions as a worker.

Family members can also rely on the employment rights of Regulation 492/2011

44
Q

Art. 7(2) Reg. 492/2011

A

Provides workers with right to same social benefits as nationals of the home Member State

45
Q

Collins [2004]

A

‘Worker’ does NOT include jobseekers

46
Q

Cristini [1975]

A

Art 7(2) Reg. 492/2011 includes all social and tax advantages, whether or not attached to the contract of employment.

Rights can extend to a worker’s family.

Fare reduction cards provided to Italian nationals and children residing in France on same status as her husband, who had been a worker in France, provided he applied before his death.

47
Q

Even [1979]

A

Art. 7(2) Reg. 492/2011 must be granted because of status as worker OR residence in the national territory

48
Q

Inzirillo [1976]

A

Art 7(2) extended to a social advantage which the family member alone qualified for.

An Italian worker, residing in France, was able to apply for a handicapped allowance for his disabled son, because the son was a dependent under EU law.

CoJ noted to deny the allowance may induce the worker to return to Italy which would defeat purpose of free movement of worker.

49
Q

Art. 20 TFEU read with Art. 18

A

Provides Union citizens with right to social assistance and other social rights on same level as nationals of the home Member State.

50
Q

Martínez Sala [1998]

A

Unemployed Spanish woman who resided in West Germany. Previously worked there, but now unemployed.

Applied for child raising allowance but didn’t have her residence permit because it was being processed.

German nationals did not have to provide resident permit to get child raising allowance.

CoJ held she had a right under Article 18 not to suffer discrimination on grounds of nationality. Germany could not make grounds for child raising allowance dependent on residence permit when German nationals didn’t require it.

51
Q

Grzelczyk [2001]

A

Minimum subsistence allowance was available to nationals resident in Belgium. Only available to non-Nationals in much more limited circumstances.

Ruled had to be available on same conditions.

52
Q

D’Hoop [2002]

A

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

Requirement that secondary education must be completed in Belgium on order to receive a tideover allowance placed claimant at a disadvantage simply because she exercised her right to move freely to pursue education in another Member State.

53
Q

Collins [2004]

A

Requirement person had to be habitually resident in UK before applying for job-seekers allowance was held to be indirectly discriminate against foreign nationals because easier to qualify.

Held to be objectively justifiable for a Member State to provide job seekers’ allowance only after it had established there was a genuine link between a person seeking work and the employment market of that state.

54
Q

Art 24 Directive 2004/38

A

Right to equal treatment of Union citizens and family members residing on basis of Art 24.

However, Member State not obliged to provide social assistance for first 3 months or longer If seeking employment.

55
Q

Dano [2014]

A

Prohibition on discrimination under articles 20 and 21 in conjunction with article 18 are subject to the restrictions provided under Article 24 Directive 2004/38.

Romanian woman, residing in Germany was denied job-seekers benefits because foreign national. Could not provoke discrimination under above articles as did not meet EU law requirements of residence.

56
Q

Art 7(3) Regulation 492/2011

A

A worker who is a national of another Member State has the same right as national workers to training in vocational schools

57
Q

Brown [1988]

A

Defined vocational school as solely referring to establishments closely connected to employment and do not include universities.

58
Q

Gravier [1985]

A

Extended the right of access to vocational schools in Art 7(3) to vocational training.

Vocational training was defined as education which prepares for a qualification for a particular profession or necessary training for such a profession.

The imposition of a fee on students of other Member States as a condition of access to vocational training which was not imposed on Belgian nationals was prohibited as a result.

Right to vocational training is now covered by Art 166 TFEU.

59
Q

Blaizot [1988]

A

A worker has the same right as national of a Member State to University education

60
Q

Brown [1988]

A

Education grants fall outside the Treaty and therefore the principle of non-discrimination under Article 18 TFEU was not applicable.

61
Q

Lair [1988]

A

Maintenance and training grants were social advantages within meaning of Art 7(2) Regulation 492/2011. Only a worker could claim for them as a result.

However, a worker held to include:

  • being in an employment relationship
  • no longer being in an employment relationship if can prove a link between previous employment and later studies.
  • Become involuntarily unemployed and need to retrain in another field.
62
Q

Art 10 Regulation 492/2011

A

Children of a national worker of a Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses…under the same conditions as the nationals of that State, if such children are residing in its territory.

63
Q

Casagrande [1974]

A

Conditions referred to in Art 10 encompasses not only rules relating to admission but also general measures intended to facilitate educational attendance. Includes educational grants

64
Q

Echternach and Moritz [1989]

A

Principle of equal treatment for the children of migrant workers under Article 10 extends to all forms of education, including Universities and technical colleges

65
Q

Grzelczyk [2001]

A

General education now falls within scope of the treaty.

Applied art 18 to a student who was being denied an educational allowance on grounds of nationality

66
Q

Bidar [2005]

A

Extends to education grants – French national living with grandmother in UK and attended secondary school denied student loan as did not meet residential requirements.

Held to indirectly discriminate against foreign nationals.

Accepted member states had right to prevent grants to nationals of other Member states from becoming an unreasonable burden.

Therefore, required evidence of a degree of integration into society of home member state – required to have resided for a certain amount of time.

67
Q

Förster

A

Reasonable amount of time to reside in a country to ensure degree of integration discussed in Bidar was held to be 5 years.

68
Q

Article 45(3) TFEU

A

Provides for free movement of workers to be subject to limitations justified on grounds of public policy, public security or public health. Known as derogations.

69
Q

Article 27(1) Directive 2004/38

A

Provides for free movement of Union citizens to be subject to limitations justified on grounds of public policy, public security or public health. Known as derogations.

70
Q

Van Duyn [1974]

A

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

Public policy derogation must be interpreted strictly.

Derogation could be used to place restrictions on member of another State even if doesn’t apply to own nationals.

71
Q

Adoui & Cornuaille [1982]

A

If relying on the public policy derogation to discriminate against nationals of other Member States, the discrimination must not be arbitrary.

72
Q

Bonsignore [1975]

A

Discrimination cannot be for the purpose of deterring others. It must be for breaches committed by the individual affected.

73
Q

Bouchereau [1977]

A

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society to rely on public policy or security derogation.

Past criminal convictions are not, in themselves, a ground for deportation.

74
Q

Rutili [1975]

A

Exclusion must be compatible with fundamental human rights, which are general principles of EU law.

A prohibition of residence which is justified on the ground of public policy derogation may be imposed only in respect of the whole of the national territory.

75
Q

Orfanopoulos [2004]

A

Respect for family life guaranteed by Article 8 ECHR had to be taken into account when considering removing someone from a Member State where close members of family are living.

Principal of proportionality must be observed.

76
Q

Art 27(1) Directive 2004/38

A

Derogations shall not be invoked to serve economic ends.

77
Q

Art 28 Directive 2004/38

A

Provides additional safeguards including age, health, economic situation, duration in State, integration, permanent residence

78
Q

Art 29 Directive 2004/38

A

Governs the public health derogation

Diseases must have epidemic potential OR may not have occurred 3 months after arrival in State.

Must undergo a medical free of charge after 3 months to ensure not suffering from conditions of epidemic potential.

79
Q

Art 45(4) TFEU

A

Provisions of Art 45 shall not apply to employment in the public service.

80
Q

Sotgiu [1974]

A

Can’t use public service derogation as convenient tool for protectionism.

Member States cannot define scope of the exemption and

Art 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.

81
Q

Commission v Belgium (Public Employees)

A

Comprising a series of posts which involve direct/indirect participation in exercise of powers conferred by public law / duties designed to safeguard general interest of state / other authorities.

Post in national railway did not.

82
Q

Lawrie-Blum [1986]

A

Trainee teachers in state schools do not fall within the public service exemption.

83
Q

French Nurses [1986]

A

Nurses do not fall within the public service exemption.

EU (6 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions