Free movement of workers Flashcards
Free movement of workers, Article:
Article 45(1) and (2) of TFEU.
Definition of ‘worker’:
“EU nationals who are either in employment (full- or part-time) in that they are paid in return for their performance under an employer/employee relationship, or are seeking actual paid work.”
Article 45 failed to define a ‘worker’, case for definition:
Lawrie-Blum v Land Baden-Wurttemberg
Facts: case concerned trainee teacher. Argued not a worker because of ‘trainee’ status.
Principle: CJEU set out a three-part test:
1. during a certain period of time;
2. performs services for or under the direction of another;
3. in return for renumeration.
Economic aspect of worker:
Has to perform duties in exchange for some economic gain.
Steymann v Staatsecretaris van Justitie: payment for work did not have to be monetary, but could be a benefit in kind.
Kempf v Staatsecretaris van Justitie: someone who does not earn enough to live on is still a worker.
Formal aspect of worker:
An employer/employee relationship exists.
Hoekstra v BBDA: could be someone who has recently lost their job, and was looking to take another one.
Working and seeking work:
R v Immigrations Appeal Tribunal, ex parte Antonissen
Facts: appealing against exporting him, had been looking for work.
Principle: reasonable for a Member State to deport someone if they have not found work within six months.
Article 6 of Directive 2004/38 allows any EU nationals to enter any Member State and remain there for up to three months without having to conform to the definition of ‘worker’.
Public-sector work:
Jobs in public-sector specifically excluded under Article 45(4). Important for the government of a country to restrict certain public-sector jobs to their own nationals.
EU citizens and access to social assistance:
Should have same access, as in Gryzelcyzk. Must be interpreted in light of Article 7(1)(b) that anyone not classed as a worker ‘not to become a burden on the social assistance system of the host Member State during their period of residence’. Justified in withholding social assistance during first three months of the worker’s residence of Directive 2004/38.
Pensionsversicherungsanstalt v Peter Brey:
Facts: German national living in Austria. Received pension from home State, but applied for supplementary support from Austria. Refused, required him to show he was not a burden under the Directive.
Principle: CJEU held even though he was economically inactive, did not assume he was a burden on the social assistance system. The mere fact that a person received social assistance was not sufficient to show that the constituted an unreasonable burden on the social assistance system.
Dano v Jobcenter Leipzig
Facts: Romanian national lived with her sister and son in Germany. No means to support herself, couldn’t claim entitlement to residence because was a burden.
Principle: in order to claim the same access to social assistance as German citizens, a person would need to establish lawful residence regarding not being a burden on the social assistance system.
Jobcenter Berlin Neukolin v Alimanovic
Facts: Alimanovic and three children were Swedish nationals in Germany. Alimanovic and eldest daughter had had temporary jobs for 11 months. Attempted to claim benefit for long-term unemployed. Stopped being paid employment benefits 6 months after had lost jobs, under Directive 2004/38 that an EU migrant worker who has been working for less than 12 months is only entitled to 6 months’ social assistance.
Principle: system including the 12-month cut-off was intended to be part of an automatic ‘individual assessment’, taking into account individual circumstances.
Public policy and public security, info:
Public policy ground for excluding migrant workers is probably the vaguest of the three derogations, and therefore potentially the most open to abuse by a Member State that wants to justify excluding someone.
The important factor is that the behaviour or activity of that person must be current, and not merely something in that person’s past.
Van Duyn v Home Office
Facts: Dutch woman who was a member of the Church of Scientology in the UK. Although no a banned organisation, viewed as undesirable, contrary to public policy.
Principle: Van Duyn’s current membership of this organisation could constitute grounds for refusing her entry, even where it was not a banned organisation. The activity has to be considered ‘socially harmful’.
R v Bouchereau
Facts: Frenchman convicted on several occasions of drug possession.
Principle: the activities of the person must be considered socially harmful in order to justify expelling him.
Bonsignore v Oberstadtdirektor of the City of Cologne
Facts: Italian working in Germany. Convicted of a minor firearms offence and Germany government wished to deport him. In order to deter other immigrants committing similar offences.
Principle: CJEU said that the reason had to be about the possible future behaviour of that person, not in order to prevent others from following his example.
