Free Movement Of Workers Flashcards
Van Duyn v Home office (1974)
Exclusion of a migrant worker on grounds of public policy based upon association with a particular group
- ECJ decided that the concept of public policy had to be interpreted narrowly but that a MS had a certain amount of discretion as to how it was to be applied
- activity has to be socially harmful
- Van Duyn membership to Scientology could constitute grounds for refusing entry even where it was not a banned organization
Workers
Art 45(3)
Accept offers of employment made
Move freely within the territory of the member state for this purpose
Stay in the member state for the purpose of employment
Remain in the member state after having been employed
R v Bouchereau (1977)
Concerning criminal convictions as ‘conduct’ under public policy ground for exclusion
- charged with drug poss
- activities of the person concerned must be socially harmful in order to justify expelling him.
Art 45 TFEU
Art 46 TFEU
- worker is entitled to move freely throughout the comm for purposes if getting a job and performing that job (art 45:1 and 3)
- a workers has the right not to be discriminated against based on their nationality (art 45:2)
- that right is subject to several exceptions (art 45: 2 and 4)
- it is directly effective (both vertical (Van Duyn) and horizontal (Angonese))
Art 46 TFEU
- gives the EU e right to make secondary legislation to provide detail on this topic
Secondary legislation - dir. 2004/38
Right of entry and residence of workers and their families gives initial right of entry and residence for up to three months without any condition other than presentation of ID card or passport.
Lawrie - Blum v Land Baden Wurttemburg (1986)
Definition of worker under art 45
- formal def– someone who performs a service under the direction of another
- government attempted to claim that he was not a worker because of trainee status
- ECJ now considers that trainee is a worker and set out three part test to deal with issue:
- genuine economic activity during a certain period of time: labor must be part of a “normal labour market” (Trojani) irrelevant if work is part time or paid minimum wage (Levin)
- performs services for and under the direction of another: if self employed it is covered by art 49 TFEU
- in return for remuneration: broad interpretation to include payment in kind (Steymann)
Hoekstra v BBDA (1964)
A worker could also be someone who has recently lost their job and is looking for another one
Kempf v Staatssecretaris van Justitie (1986)
Whether an individual earns enough to live on even though the work is irrelevant
Antonisson (1991)
Those actively seeking work do not have the full status of a worker but are nonetheless covered by art 45 TFEU
- MS retain the power to expel job seekers who do not have prospects of finding work within reasonable time.
- definition: must be actively seeking work with a genuine chance
Art 30 directive 2004/38
Union citizens are not to be deported immediately but be allowed to stay for at least one month
Art 6
Art 7
Directive 2004/38
Art 6– union citizens have a right of residence for up to 3 months without condition
Art 7– extends beyond 3 months provided EU citizen is covered by adequate sickness insurance and does not become a burden on the state
Netherlands v Reed
The reform of definition of married partners was confirmed by ECJ as common law partners
- right to stay as cohabitee
Art 3(2) directive 2004/38
Provides other family members who are dependent on union citizen with primary right of residence are to be afforded entry and residence rights
Art 30 directive 2004/38
Decision to expel must be notified and minimum period given to leave shall not be less than one month
Art 27directive 2004/38
Provides that measures adopted on public policy/ security must be based on personal conduct
-directive requires a serious threat to the fundamental interests of society
Grzelczyk
Person can be a reasonable burden which is ultimately up to the national court to decide and that the resources of others is acceptable
-provided substance to the rights of citizenship in art 20 TFEU
Sala v Bayern
ECJ held that where a person was legally a resident in a host state, they did not have to produce a residence permit to obtain a state benefit where no similar requirement was made of nationals
Collins case
ECJ will not allow non contributory benefits to be claimed when there is not a sufficient connection to the state although residence under EU law is still upheld
Morgan v Bucher
Confirms that MS are justified in requiring proportionate degrees of integration in the host state before granting benefits
Intro to free movement question
Free movement of persons is catered for in Art 45-62 TFEU
ECJ has sought to promote the rights and freedoms available to EU workers and to restrict where possible the reasons where member states can impede those freedoms
Levin case
Requirement of genuine economic activity
Factortame
Definition of establishment - actual pursuit of an economic activity through a fixed establishment in another member state for an indefinite period
Jany
General concept of self employment has been given recognition by ECJ
- must play a part in the tax and social security system of the host state
Lair case
Weak claim as a student and should have the right to benefit. Link required is previous employment studies and future employment
Brown case
Work was only in support of studies and thus the status of worker is not to be applied
Directive 2004/38 art 27(1)
State authorities cannot use past convictions as grounds in themselves to warrant deportation (ie Bouchereau - where they are a present threat and pose as a threat in the future it can warrant as a grounds for deportation and be employed as evidence
Art 2(2) directive 2004/38
Are allowed to remain in host states as they are ascendants of a worker
Castelli
Provides that benefits in respect of members of the family of a worker are also social advantages
Michel S
Special benefits to enjoy public services is arguably only applicable to children of workers
Art 56 TFEU and directive 77/249
Concerns freedom of lawyers to provide services
Art 5 of directive 77/249 requires that lawyers work in conjunction with a national lawyer - but held by ECJ that this is only compulsory if case is to come before a court
Groenner
Requirement in a job description to speak Gaelic – ECJ held that knowing Gaelic is an acceptable language requirement and would be allowed granted that it is proportionate, fair and not applied in a arbitrary or discriminatory manner
Angonese
Restrictive to have a certificate from a certain place and contrary to Art 45 - principle of non discrimination
Trojani
Swept floor for thirty minutes per day still considered a worker
Steymann
Handyman didn’t get paid in money but in accommodation and still considered to be remuneration
Calfa case
Automatic expulsion is prohibited - cannot just deport people without looking at proportionality
Olazabal
Not necessary for identical measures to be taken against nationals and non nationals but they need to proportionate
Art 45(4)
Public service provision
Reg 1612/68 –
Replaced by reg 492/2011
