Free Movement of Workers

Question 0

Boukhalfa, Bosman

Answer 0

Extending Walgrave - Art 45 also applicable to citizens who work predominantly outside the EU

Question 1

Walrave and Kock

Answer 1

Art 45 will apply even where the work that has been carried out was done outside of the EU provided that it relates to the Community in some way

Question 2

Angonese

Answer 2

Art 45 is also horizontally effective to the actions of individuals

Question 3

Hoekstra

Answer 3

The ECJ has insisted that the definition of ‘worker’ is for EU law not national law

Question 4

Clean Car Autoservice GmbH

ITC Innovative Technology Center GmbH

Answer 4

Art 45 can be relied upon by an employer

and a relevant 3rd party

Question 5

Meeusen

Answer 5

A worker is someone who pursues ‘effective and genuine’ employment which is not negligible so to be ‘purely marginal and ancillary’

Question 6

Jany

Answer 6

Whether a worker comes under Art 49 depends on whether there is a relationship of subordination

Question 7

Levin

Answer 7

The ECJ alluded to Hoekstra in which MSs are not allowed to unilaterally define the term ‘worker’ - it also does not matter if the EC does not reach the minimum level of subsistence in the relevant MS -purpose or motive for working is also immaterial (e.g. to stay in a country)

Question 8

Kempf

Answer 8

Expanded Levin and said it was irrelevant that a part-time worker was being paid by public funds

Question 9

Lawrie Blum

Answer 9

It is important that there is some kind of economic remuneration although this can be for training (like here ) - as long as 1. She performed services of economic value, 2. Was under the direction of the school in question and 3. Received remuneration in return

Question 10

Steymann

Answer 10

It was extended from Kempf that an employee does not necessarily need to return money in return for economically valuable activity as long as there is some kind of remuneration

Question 11

Bettray

Answer 11

In contrast to Levin and Steymann this was not genuine economic activity and the purpose of employment was crucial to ruling against him - could criticise

Question 12

Trojani

Answer 12

Distinguishing Bettray it stated that drug rehabilitation did not disqualify work but the key question was whether it could be considered a part of the ‘normal labour market’

Question 13

Brown

Answer 13

Work that fulfils all three conditions in Lawrie Blum may not be satisfied if the work will not benefit the MS per se - here it was to go and do a degree - he was not a ‘worker’

Question 14

Ninni-Orasche

Answer 14

Objective factors i.e. number of hours worked should be given preference over subjective factors i.e. motive

Question 15

Antonissen

Answer 15

Those seeking work do not have full worker status but are nonetheless covered by Art 45 - ECJ also explained that Art 45 rights are not exhaustive

Question 16

Lebon

Office national de l’emploi v Ioannidis

Answer 16

Social/ax advantages are not available to those who are moving to look for work
NB the partial retreat that those seeking employment can benefit from jobseekers if it is explicitly linked to the employment market of that state e.g. transition from education to employment

Question 17

Gottardo

Answer 17

Rules which discriminate on the grounds of nationality will be caught by Art 45

Question 18

Commission v French Republic

Answer 18

Direct discrimination caught by Art 45 - incl. public bodies and universities - strong burden of justification

Question 19

Ugliola

Answer 19

Indirect discrimination - usually where benefits are proffered with a condition which is easier for nationals to satisfy over non-nationals

Question 20

Groener

Answer 20

An imposition of language requirements may be indirectly discriminative although it may be legitimate - here it was proportionate to the Irish govt’s aims to promote Irish language and culture

Question 21

Commission v Portugal

Answer 21

An double-burden may be imposed, and will be indirectly discriminative, by not recognising certificates, etc. - this overlaps with the free movement of goods and services

Question 22

Bosman

Answer 22

Even national measures which are non-discriminatory but impose excessive obstacles to the freedom of movement will be held to be in breach of Treaty and Art 45

Also shows workers following goods Dassonville

Question 23

Graf

Answer 23

Appeased the critics of Bosman and the barriers to access by elucidating that a non-discriminatory national measure will only be caught by Art 45 if its result is akin to exclusion from the employment market

Question 24

Saunders

Answer 24

Art 45 does not apply to ‘wholly internal’ situations i.e. where nationals cannot benefit from provisions made for non-nationals

Question 25

Olympique Lyonnais

Answer 25

Certain tax restrictions are justified but others, which could greatly discourage and are disproportionate to the aim, will not be justified

Question 26

Sotgiu

Answer 26

It is for the ECJ to decide, not MSs, who is a public sector worker and who isn’t

Question 27

Commission v Belgium

Answer 27

Test for public service - (i) must involve participation in the exercise of powers conferred by public law, (ii) must entail duties designed to safeguard the general interests of the state – accumulative

Question 28

Metock

Answer 28

Directive 2004/38 must not be interpreted restrictively

This case was greatly criticised for being too broad when allowing third country nationals to enter -

Question 29

Royer, Oulane

Answer 29

It is clear that deportation, refusal of entry, etc. are disproportionate means of penalising non-compliance with residence formalities

Question 30

Bernini

Answer 30

Vocational training following employment will see the EC retain their status as a worker

Question 31

Antonissen (period of unemployment following employment)

Answer 31

Although the 6 month period was reasonable, this is a flexible amount of time and provision should be made for those who have chance of being genuinely engaged

Question 32

Collins

Answer 32

Once unemployed, the EC will not keep their limited rights under Art 45 for an excessively lengthy amount of time

Question 33

Michel S

Cristini v SNCF

Answer 33

Originally the ECJ interpreted Art 7(2) of the Regulation 1612/68 restrictively but soon departed from this in C by saying that although Art 7 only applies to workers family members can derive indirectly from it when the worker is deceased, for example

Question 34

de Vos

Answer 34

NB the difference between social and tax advantages to be available to workers and those which aren’t, e.g. payment for having served in WWII is not caught by Art 7 - in contrast with Ugliola

Question 35

Lair

Chen

Answer 35

Educational rights for workers must be intrinsically linked to their profession or be demanded by how the market is after involuntary unemployment – NB this is not too restrictive, however

Question 36

Casagrande

Answer 36

Broad reading meaning that it should apply to all provisions or encouragements of education including grants

Question 37

Gaal

Baumbast

Answer 37

Art 12 is wider than Art 10 so includes non-dependent ‘children’ over 21- so long as the child lived with that parent who was a worker in the MS at that time - this also continues when the parent has returned back to their country of origin – things like divorce, etc. are also immaterial

Question 38

Morson and Jhanjan

Uecker and Jacquet

Answer 38

The fact that Art 45 cannot apply internally seems unjust, especially here where these Dutch nationals ended up having fewer rights than those who had migrated there – this has been confirmed

Question 39

Akrich

Answer 39

Moving to another country for a short period of time was not an ‘abuse of rights’ just to avoid the ‘internal situation’ problem

Question 40

Boucherau

Answer 40

Codified in Art 27(2) where the personal conduct of an individual must represent a ‘genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society’ to be expelled from a MS

Question 41

Calfa

Answer 41

Automatic expulsion without consideration is prohibited

Question 42

Van Duyn

Answer 42

An organization need not be criminalised for it to be considered socially harmful (Scientology) in order to take restrictive action

Question 43

Adoui and Cornuaille

Answer 43

The penalty of expulsion must be comparable to the penalty given to nationals

Question 44

Land-Baden Wuttenburg

Answer 44

General interpretation of Arts 27-28 NB also the consideration of HR and also the three steps of protection as well as it being ‘sufficiently serious’

Question 45

Rutili

Answer 45

Persons who are to be excluded need to be given a full explanation as to the reasons why - unless contrary to national security - also the right to appeal