Free Movement Of Workers

Question 0

Van Duyn v Home office (1974)

Answer 0

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

Question 1

Workers

Answer 1

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

Question 2

R v Bouchereau (1977)

Answer 2

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.

Question 3

Art 45 TFEU

Art 46 TFEU

Answer 3

• 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

Question 4

Secondary legislation - dir. 2004/38

Answer 4

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.

Question 5

Lawrie - Blum v Land Baden Wurttemburg (1986)

Answer 5

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)

Question 6

Hoekstra v BBDA (1964)

Answer 6

A worker could also be someone who has recently lost their job and is looking for another one

Question 7

Kempf v Staatssecretaris van Justitie (1986)

Answer 7

Whether an individual earns enough to live on even though the work is irrelevant

Question 8

Antonisson (1991)

Answer 8

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

Question 9

Art 30 directive 2004/38

Answer 9

Union citizens are not to be deported immediately but be allowed to stay for at least one month

Question 10

Art 6
Art 7
Directive 2004/38

Answer 10

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

Question 11

Netherlands v Reed

Answer 11

The reform of definition of married partners was confirmed by ECJ as common law partners
- right to stay as cohabitee

Question 12

Art 3(2) directive 2004/38

Answer 12

Provides other family members who are dependent on union citizen with primary right of residence are to be afforded entry and residence rights

Question 13

Art 30 directive 2004/38

Answer 13

Decision to expel must be notified and minimum period given to leave shall not be less than one month

Question 14

Art 27directive 2004/38

Answer 14

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

Question 15

Grzelczyk

Answer 15

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

Question 16

Sala v Bayern

Answer 16

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

Question 17

Collins case

Answer 17

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

Question 18

Morgan v Bucher

Answer 18

Confirms that MS are justified in requiring proportionate degrees of integration in the host state before granting benefits

Question 19

Intro to free movement question

Answer 19

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

Question 20

Levin case

Answer 20

Requirement of genuine economic activity

Question 21

Factortame

Answer 21

Definition of establishment - actual pursuit of an economic activity through a fixed establishment in another member state for an indefinite period

Question 22

Jany

Answer 22

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

Question 23

Lair case

Answer 23

Weak claim as a student and should have the right to benefit. Link required is previous employment studies and future employment

Question 24

Brown case

Answer 24

Work was only in support of studies and thus the status of worker is not to be applied

Question 25

Directive 2004/38 art 27(1)

Answer 25

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

Question 26

Art 2(2) directive 2004/38

Answer 26

Are allowed to remain in host states as they are ascendants of a worker

Question 27

Castelli

Answer 27

Provides that benefits in respect of members of the family of a worker are also social advantages

Question 28

Michel S

Answer 28

Special benefits to enjoy public services is arguably only applicable to children of workers

Question 29

Art 56 TFEU and directive 77/249

Answer 29

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

Question 30

Groenner

Answer 30

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

Question 31

Angonese

Answer 31

Restrictive to have a certificate from a certain place and contrary to Art 45 - principle of non discrimination

Question 32

Trojani

Answer 32

Swept floor for thirty minutes per day still considered a worker

Question 33

Steymann

Answer 33

Handyman didn’t get paid in money but in accommodation and still considered to be remuneration

Question 34

Calfa case

Answer 34

Automatic expulsion is prohibited - cannot just deport people without looking at proportionality

Question 35

Olazabal

Answer 35

Not necessary for identical measures to be taken against nationals and non nationals but they need to proportionate

Question 36

Art 45(4)

Answer 36

Public service provision

Question 37

Reg 1612/68 –

Answer 37

Replaced by reg 492/2011