Free Movement of Workers

Question 1

Treaty Article for Free Movement of Workers:

Answer 1

Article 45 TFEU

Question 2

Key Points of Article 45

Answer 2

(I) Worker is entitled to move freely within EU for employment (45.1).

(ii) Also entitled to move freely for purposes of seeking employment (45.3).
(iii) Worker has right to not be discriminated against on grounds of nationality (45.2)

Question 3

Which case defines a worker:

Answer 3

Lawrie-Blum

Question 4

Lawrie-Blum for identifying an EU worker:

Answer 4

(i) Someone who during a certain period of time,
(ii) performs services for/under the direction of another,
(iii) in return for remuneration.

Question 5

During a certain period of time:

Answer 5

Work must not be marginal and ancillary.

Raulin

Question 6

Performing services under direction of another:

Answer 6

Trainee status is irrelevant, must be directed by another

Lawrie-Blum

Contrast with

Hoekstra – Someone looking for work is still deemed a worker, despite being under nobody’s direction.

Question 7

In return for remuneration:

Answer 7

Applies even if the pay is below domestic minimum.

Levin

Question 8

Limits for work-seekers

Answer 8

Can be deported If they have not found work in 6 months.

R v Immigration Appeal Tribunal (Antionissen)

Question 9

How long can a work-seeker remain in member state?

Answer 9

3 months.
Directive 2004/38
(Art 6)

Question 10

Rights of a worker:

Answer 10

Right to enter
Right to leave
Right to reside
Right to remain 
Right of permanent residence

Question 11

Right to enter

Answer 11

Article 5 (1) Directive 2004/38

Question 12

Right to leave

Answer 12

Article 4 (1) Directive 2004/38

Question 13

Right to remain

Answer 13

Without a job: Article 6 Directive 2004/38

With a job: Article 7 Directive 2004/38

Question 14

Right to remain after losing job:

Answer 14

Article 7 (3) Directive 2004/38

Question 15

Right of permanent residence

Answer 15

Article 16 (1) Directive 2004/38

Question 16

Conditions of remaining after losing job:

Answer 16

(i) Illness
(ii) Involuntarily unemployed
(iii) Seeking vocational training

Article 7(7) Directive 2004/38

Question 17

Are public sector jobs open to EU workers:

Answer 17

No, Art 45 (4) TFEU.

Question 18

Access to social assistance:

Answer 18

Member state not obliged to offer assistance during first 3 months.

Article 24 (2) Directive 2004/38

Question 19

Brey

Answer 19

“Mere fact that a person received social assistance is not sufficient to show that he constituted an unreasonable burden on the state”.

Question 20

Origins of ‘Burden on the state’

Answer 20

Article 7(1) (b) Directive 2004/38

Question 21

Derogations

Answer 21

(i) Public Policy
(ii) Public health
(iii) Public security
Article 45 (3)

Question 22

Public Policy:

Answer 22

“Must represent a genuine, present and sufficiently serious threat at affecting one of the fundamental interests of society”.

Directive 2004/38

R v Boucherou: Actions must be socially harmful.

Question 23

Plan for FMOW Question

Answer 23

Identify relevant Article - for EU Citizens (Art 20/21)
- for EU Workers (Art 45 TFEU)

What is a worker - Definition in Lawrie-Blum

Family- Art 2 Directive 2004/38

Entitlement to Social Benefits

• Art 24 Directive 2004/38 (No discrimination to EU nationals)
• Art 7