Free Movement of Workers Flashcards
Article 45
Free movement of workers shall be secured within the Union.
Lawrie-Blum
Defines a worker. ‘For a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.
Case 53/81 Levin
Renumeration
Includes work for less than the minimum wage. Work = genuine and effective.
Case 139/85 Kempf
Renumeration
Includes part-time work
Bettray
Renumeration
Paid work as the result of court-ordered rehab is not renumeration as there must be some element of choice.
Steymann
Renumeration
Plumber works for religious community - an economic activity? Yes. Work was genuine and effective, as specified in Levin. Renumeration does not need to be direct, so long as the worker receives something in return.
Raulin
Renumeration
National court can decide if a zero hours contract is sufficient.
Ninni-Orasche
Renumeration
Even a few months of service counts.
Regulation 492/2011
Codifies and confers ‘positive’ rights to social advantages and substantive benefits enjoyed by domestic workers.
Directive 2004/38
Citizens rights directive - rights to residence and entry to workers, EU citizens and their families.
Antonssen
Job seekers
Article 45 must apply to job-seekers. Six months to seek work was held to be permissible.
Codified in Directive 2004/38, Article 14(4)(b), there is no set limit and the issue is whether you have a genuine chance of being employed.
Commission v Belgium
Job seekers
A strict 3 months was given to seek work.
Indirect Discrimination
Where workers access to benefits or other social advantages are made conditional on something which home state nationals can more easily satisfy.
Ugiola
Indirect discrimination
German workers’ security of employment included time spent in the German army.
Groener
Indirect discrimination
Requirement that teacher working in Ireland is competent in the Irish language, proportionate in some circumstances but not in others.
Royer
Residence rights
Residence cards cannot be demanded. The right is an EU law right and residence permits are merely confirmation
Directive 2004/38 Article 6, Article 7(1)(a), Article 7(2)
Article 6: Initial right of entry up to 3 months. Article 7(1)(a): Economically active EU citizens can reside for as long as they are workers/established. Article 7(2): so can family members even if not EU nationals.
Netherlands v Reed
Families
Because families ‘can assist his integration in the host state and thus contribute to free movement of workers.
Buambast
Families
Divorce-non-EU spouse is the child’s primary carer, she can remain until the children have finished their education.
Lebon
Families
Rights for children of workers cannot be claimed when not advantageous to the worker.
Regulation 492/2011
Workers and ‘Social Advantages’
Positive rights to social advantages and substantive benefits enjoyed by domestic workers.
Case 207/88 Even
Social advantage
A social advantage is something ‘generally granted…because of their objective status as workers or by virtue of the mere fact of their residence on the national territory.
Belgian pensions took into account service with allies in WW2. Not a social advantage.
Reina
Social advantage
Childbirth loan = social advantage. Aids all low income workers/residents.
Collins
Social advantage
Jobseekers allowance, but this can require habitual residence.
Expelling an EU Worker/Family Article 45(3)
Limitations permissible for public policy, public security and public health.
Public health: directive 2004/38, article 29: epidemic potential.
Article 27, Directive 2004/38
Must be proportionate and relate only to personal conduct (Van Duyn)
Bouchereau
Expulsion from EU
Expulsion can only be because personal conduct is a ‘genuine, present, and sufficiently serious threat to the fundamental interests of society’
Adou
Expulsion from EU
If the conduct does not lead to punishment for your citizens, cannot expel EU citizens for it.
Tsakouindis
Expulsion from EU
Multiple factors to be taken into account: nature & seriousness of offence, duration of residence, period since offence, conduct, social cultural and family ties with host member state.
