Free Movement of Workers/ The Rights Of EU Citizens Flashcards
Arts 45, 20, 21 and 18 TFEU
Art 45 – has direct effect.
• Key provision of the free movement of workers – there is a link between art 45 and 18, so the abolition of discrimination on grounds of nationality.
• In general, the provision guarantees the free movement of workers within the Union.
• Para 4 has been interpreted broadly. It says that the provision shall not apply to employment in the public service.
Art 20
• Art 45 is read together with art 20.
• Creation of Union Citizenship
• This article is about citizenship of the Union; it specifies that it does not replace national citizenship. EU citizens have a list of rights, for example EU citizens have a right to move and remain in the Member States.
• Art 20 sometimes refers back to Art 45.
• EU citizenship is expressly made ‘additional to’ national citizenship.
Art 18
• This article is about the prohibition of discrimination on grounds of nationality.
• One way to read the article is to say that there has been a violation of articles 45 and 20. Then apply article 18 based on grounds of nationality.
Art 21
• Free movement for Union citizens, but subject to ‘conditions and limitations.’
Directive 2004/38
• On the right of citizens of the Union and their family members to move and reside freely within the territory of the MS.
• The Directive does not distinguish between spouses with prior lawful residence and spouses without prior lawful residence in one of the MS.
• Metock 2008 – [52]
o ‘the fact that Article 5(2) provide for the entry into the host Member State of family members of a Union citizen who do not have a residence card shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State’.
• Article 7(2) – provides that EU citizens who are no longer working retain the status of a workers where the are temporarily unable to work as the result of an illness or accident.
Case C-184/99 Grzelczyk ECLI:EU:C:2001:458
• Facts
o Mr G a French national undertook a course of studies in physical education at a Catholic University. During the first three years of his course, he defrayed his own costs of maintenance, accommodation and studies by taking on various minor jobs and by obtaining credit facilities. The fourth year of his studies being the most demanding Mr G applied to the Public Social Assistance Centre for payment of the minimum subsistence allowance. He was initially granted the allowance or ‘minimex’.
o Mr G’s entitlement to the minimex was then withdrawn. The competent minister basing his decision to stop payment on the fact that Mr G was a student.
o M G brought an action before the competent Belgian court challenging the decision to stop payment of the minimex.
• Issues
o Does the principle of non-discrimination on grounds of nationality and the provisions of the EU citizenship preclude entitlement to a non-contributory social benefit to be made conditional, in the case of nationals of other Member States, in this case France, upon their being regarded as workers given that the condition did not apply to nationals of the host Member State (Belgium)?
• Reasoning
o The CJE held that the minimex was a social benefit and that a Belgium student in the same position as Mr G would have satisfied the conditions for obtaining it. Thus, the Court found that Mr G had suffered discrimination solely on the ground of his nationality.
Notes from book on the case
• The case quotes ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’ yet normative content of EU citizenship remains ambiguous.
o The question arises whether EU citizenship has become the primary legal status under EU law for MS nationals rendering residual the other legal categories into which EU traditionally divided the nationals of EU MS (worker, student, family members), or whether the practical impact of EU citizenship remains supplemental and residual to those other categories – the answer lies probably somewhere in between.
o The influence of EU citizenship on the outcome of the case was crucial. As an EU citizen pursuing vocational studies in another MS, Grzelczyk was entitled to rely on the prohibition on discrimination on grounds of nationality
Case C-34/09 Ruiz Zambrano ECLI:EU:C:2011:124
• Family reunification claim. The case involved non-EU parents of two EU citizen children born and resident in Belgium, who had never left that member state.
o Advocate General Sharpston and the ECJ disagreed on the fact that the situation was not ‘wholly’ internal.
• Ruling
o Article 20 TFEU is to be interpreted in such a way that it precludes/stops Member States from refusing a third country national a right of residence upon having minor children who are his/her dependants. Moreover, to preclude Member States from refusing to grant a work permit to that third country national upon the conditions mentioned above and which would deprive the children from enjoyment of their EU citizenship.
• Facts
o Two Columbian nationals resided in Belgium as refugees. Two of their children who were born in Belgium obtained Belgian nationality upon having been born in the country.
o Despite the couple having made efforts to learn the language and integrate into the country their right to remain was denied.
• Issues
o Whether the provisions of the TFEU on citizenship can be interpreted as conferring a right to remain to a third country nationals upon whom his minor children who are EU citizens are dependent?
Notes on case from book
• From the case law that the introduction of EU citizenship and the rights of movement and residence in Articles 20 and 21 TFEU have placed continued pressure on the notion of purely internal situation, and have contributed to widening the circumstances in which EU nationals can make citizenship-based claims against the own MS. Certain factual situations such as those involving dual-nationality, and despite the restrictive application of the Zambrano test. Family reunification claims, which otherwise have been considered as purely internal situations, may have a sufficient connection with EU law due to the impact of specific rights enjoyed by virtue of the status of EU citizenship.
Case C-333/13 Dano ECLI:EU:C:2014:2358
• Ruling
o 2. Article 42(1) of the Directive 2004/38 of the European Parliament on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States read in conjunction with Article 7(1)(b) and Article 4 of Regulation 883/2004, must be interpreted as precluding/stopping legislation of a Member State under from excluding the entitlement to certain ‘special non-contributory cash benefits’ in so far as nationals do not have a right of residence in the host Member State.
• Facts
o Ms Dano and her son are both Romanian nationals, her son was born in Germany.
o Ms Dano was issued a residence certificate of unlimited duration. Ms Dano and her son have been living in the apartment of Ms Dano’s sister who provides for them materially.
o Ms Dano receives child benefit. Her German is basic; she understands it but cannot write it. There is no sign that she has looked for a job.
o Ms Dano applied for benefits as a basic provision and those were refused.
o Ms Dano challenged the refusal of non-contributory benefits.
• The Court asks whether Article 18, 20, 24 of the Directive 2004/38 and Article 4 of Regulation No 883/2004 must be interpreted as precluding (making impossible) the legislation of a Member State from entitlement to certain benefits to those who are not in full or in part employment although those benefits are granted to nationals of the Member State concerned who are in the same situation.
• No, principle of non-discrimination paras - 64, 74 78 80
o The financial situation of each person must be assessed and decided upon based upon not holding residence of that Member State.
Notes on case from book
• Involved a non-economically active Romanian woman who had moved with her son to live in Germany for a number of years, had been granted a residence certificate for unlimited duration and was in receipt of certain basic benefits
• She sought to challenge the rejection for a ‘special non-contributory cash benefit’ relying on the principle of discrimination in Article 18 TFEU and Article 24 Directive 2004/38.
• She was unsuccessful.
o [73] ‘In order to determine whether economically inactive Union citizens, in the situation of the applicants…whose period of residence in the host Member State has been longer than three months but shorter than five years, can claim equal treatment with nationals of that Member State so far as concerns entitlement to social benefits, it must therefore be examined whether the residence of those citizens complies with the conditions in Article 7(1)(b) of Directive 2004/38. Those conditions include the requirement that the economically inactive Union citizen must have sufficient resources for himself and his family members.’
o [81] ‘In the main proceedings, according to the findings of the referring court the applicants do not have sufficient resources and thus cannot claim a right of residence in the host Member State under Directive 2004/38…they cannot invoke the principle of non-discrimination in Article 24(1) of the directive.’
Case C-67/14 Alimanovic ECLI:EU:C:2015:597
• Judgment
o Article 24 of directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within Member States and Article 4 of 883/204 on the coordination of social security systems must be interpreted as not precluding (prevent from happening) legislation of a Member State under which nationals of other Member States are excluded from entitlement to certain ‘special non-contributory cash benefits’, which also constitute ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38, although those benefits are granted to nationals of the Member State concerned who are in the same situation.
o So foreign EU nationals have the right to the same benefits as nationals in the MS of residence.
- MS nationals who are job-seekers and resident in a different Member State are excluded from claiming ‘non-contributory cash benefits’
- [32] The benefits sought by the Swedish family in Germany constituted ‘‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38, and therefore, job-seekers may be refused the grant of such benefits.’
- The family is seen as becoming a burden to the host Member State, which can have consequences on the overall level of assistance granted (Dano).
- [60] ‘Directive 2004/38, establishing a gradual system as regards the retention of the status of ‘worker’ which seeks to safeguard the right of residence and access to social assistance, itself takes into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity.’
Case C-218/14 Singh and others ECLI:EU:C:2015:476
• Facts
o Mr Singh an Indian national arrived in Ireland in 2002 with a student visa.
o In 2005 Mr Singh married a Latvian national who was working and residing lawfully in Ireland. A child of that marriage, who also has Latvian nationality was born in 2007.
o After judgment was delivered in Metock and in accordance with the Directive 2004/38, Mr Singh was granted permission to reside in Ireland for 5 years as the spouse of a Union citizen residing and exercising rights under TEU in Ireland.
o Mr Singh was continuously employed from 2004 until 2009 in various jobs.
o In 2009 Mr Singh operated a franchise for an initial term of 10 years. Thereafter he supported his family financially while his wife stayed at home and cared for their son.
o Mrs Singh left Ireland in 2010 and instituted divorce proceedings in Latvia in 2010 which was pronounced in 2011.
• The question is whether the spouse (a third country national) of an EU national will retain a right of residence when divorced?
o Based in Art 12 below no.
♣ [70] the third country national cannot retain a right of residence whose marriage lasted for at least three years before the commence of divorce proceedings where the commencement of divorce proceedings is preceded by the departure from that Member State of the spouse who is a Union citizen.
• Article 13 – preserves right of residence of a Union citizen family member who are not nationals of a Member State based on 2 conditions stated in this case:
o 1. The rights conferred on third country nationals by the Directive 2004/38 are rights derived from the exercise of freedom of movement by a Union citizen.
o 2. Thus, third country nationals can claim right of residence provided by the Directive only in the host Member State in which the Union citizen resides, and in another Member State.
o The Court interprets Art 13 as such: If the EU citizen moves before the proceedings for the divorce start…no right to reside under Directive 2004/38.
Notes
Chap 21
• Art 46 TFEU has the main aim of giving practical effect to the rights established under article 45.
(A) Definition of ‘worker’: an EU concept
• An issue which the treaty left unclear was whether ‘worker of the Member States’ in Article 45(2) covered only nationals of Member States or whether it included non-EU nationals residing and working within the EU.
• Secondary legislation, in particular Regulation 492/2011, specifically restricted its application to workers who were nationals of the MS and adopted by the CJE.
• The position of third-country nationals’ resident and working in the EU is now governed in part by secondary legislation.
• The EU concept of a worker: any person who pursues employment activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as ‘purely marginal and ancillary’.
o This concept varies according to the EU law context in which it arises, and the purpose for which it is invoked.
(B) Definition of ‘worker’: Minimum income and working time requirements
• Performing a service of economic value and receiving a measure of remuneration in return.
• Levin and Kempf, - what mattered was the genuine economic nature of the work plus remunartion.
• Steymann – in this case the CJE pushed the concept of remuneration, and hence of economic activity a little further. The fact that the work might be seen in conventional terms as being unpaid did not necessarily mean that it was not effective economic activity.
(C) Definition of a worker: purpose of employment
• The general rule is that the motive or purpose for which the employment is undertaken will not be relevant in determining whether a person is a worker. Provided that the employment is genuine and not marginal, it will be covered by Article 45. However, there are cases where account has been taken of the purpose of employment for example in Betray.
o However, the case is open to criticism because ensuring the mobility of a well-trained workforce would seem to be an important part of the Treaty’s aims and reintegration of people into the workforce through sheltered employment would seem part of this.
o If the Bettray ruling were to be be applied to the case of sheltered employment for disabled people, this could exclude many disabled people from being workers under EU law.
(D) Definition of a worker: the job seeker
• In Antonissen, The Court held that those who are actively seeking work do not have the full status of a worker, but are nonetheless covered by Article 45.
o The ECJ ruled that the purpose of Article 45 was to ensure the free movement of workers and that literal interpretation of its terms would hinder that purpose. If nationals could move to another MS only when they already held an offer of employment, the number of people who could move would be small, and many workers who could seek and find employment on arrival in a MS would be prevented from doing so.
o The ECJ made it clear that the status of an EU national searching for work was not the same as that of an EU national who was actually employed. MS retain the power to expel job-seekers who does not have prospects of finding work after a reasonable amount of time.
Rules which directly discriminate on grounds of nationality will be caught by Article 45.
Direct and indirect discrimination, and even impediments to market access can also lead to an infringement of Article 45.
• Article 45 does not apply to wholly internal situations where there is no factor connecting the defendant to any situation envisaged by Community law.
Article 45(4): The public service exception
• The ECJ’s approach to limiting clause 4 provides that Article 45 shall not apply to ‘employment in the public service
Seminar notes
Questions for discussion
- ‘An examination of recent cases serves to demonstrate that continuing to rely on the traditional rationale of economic fundamental freedoms is capable of generating results that are curiously random’.
Critically discuss with reference to relevant cases of the CJEU on Articles 45, 20, 21 and 18 TFEU.
• Random situation based on Article 20 = EU citizenship status
• Article 18 is the main provision against discrimination on any grounds, such as nationality.
o In the case of Grzelczyk, a French student was denied a ‘minimex’ so a student allowance, based upon the fact that he is French.
o The Court held this to be direct discrimination and granted the social benefit to the student.
o The EU citizenship awarded to G by Article 20 was the ground upon which he was able to rely on the principle of non-discrimination. This raises issues, such as
♣ Whether EU citizenship has become a primary status or a residual status from the traditional categories (worker, student, family members), or whether the status remains supplemental and residual. We do not know.
♣ However, the decision is not random, is based upon Treaty articles that prohibit discrimination on grounds of nationality.
• Random situation –
• Ruiz Zambrano – where third country nationals were given the opportunity to reside in Belgium due to their two minor and dependent children having EU citizenship – raises questions –
o Would this be a new way for third country nationals to be granted residence in the EU?
o The Court made a fair decision with the children, what about the parents? Maybe they planned it all along?
• Random
• Dano – despite residence being straight forward in the treaties and prohibited by EU legislation, Dano explores an interesting aspect –
o Certain ‘cash benefits’ may be indirectly refused on grounds of nationality. How is this so?
♣ Germany seems to get around Articles 18 and 45 using the term ‘economically inactive citizens’
♣ Germany refuses the benefit to the Romanian family using the Directive 2004/38 explaining that the family has not been in the country long enough, the applicants ‘do not have sufficient resources’ and therefore cannot claim a right of residence in the State under the Directive and cannot invoke the principle of non-discrimination.
Conclusion
• They Court’s judgments may seem random, however, the Court is consistent in its application of the principle of non-discrimination stated in the Treaties and the Directive 2004/38. The only exception could be Dano. However, this is purely based on the fact that Romanians are third-country nationals and had not been long-enough in the country to claim residence, otherwise they could have invoked the Directive and the principle of non-discrimination.
Notes:
1.
• Workers cases + citizenship cases under Art 45.
• And what you would consider to be the traditional rationale of the quotation/ answer
o Define what phrases mean at the start if they are not obvious/ the reader may have a different definition.
o Having done that we would look at the rationale (reasons to choose something) that way we would see whether the decision is random or not.
o Try to choose cases that link together in the cases (this is more consistent overall = gives a stronger argument).
• The principle underpinning movement – there must be some movement to create a link with EU law
o See if the Court has identified movement or not? Is it implied? And as a result are the result of the cases random or not?
o Make sure that whatever, rational you choose you can explain it.
♣ Use a case where physical movement has been required – demonstrated
♣ Ie Zhu Chen. – Chinese parents that had children in Northen Ireland, moved as a family to Wales – the issue at hand was the application for residence permit.
• Third- country national parents, who children were EU citizens, the question was whether the family had a right to reside –
• The Court said that the family had a derivative right to reside. But also because the EU citizens had exercised their right of free movement.
• Could this be random?
o It depends on whether the economic factors – we could see that the children would not have moved for economic purpose, so it is random as a child could not ‘exercise their right of movement’ alone.
o This creates an opportunity when movement is not clear, or there is no movement at all. And yet the Court has found a relationship with EU law.
o EU law – remember does not apply to purely internal situations – starting point – and has exceptions.
• Garcia v Avello
• Internal situations where the Court has found a link with EU law
o A family living in Belgium, parents Spanish. Children born with dual nationality (Belgium and Spanish)
o Parents approach the Belgium authorities to change the name of the children based on Spanish tradition – application refused
♣ Distinguish the cases
♣ Here we do not have movement/ EU rights – we have the application refused
♣ The position in Garcia – which said that citizenship is not intended to expand the scope of the Treaty with no link to the Community.
♣ The question that arises is – are there any internal situations that are linked to the Community? If so which?
• In this case the Court found that there were two links to Community law:
o 1. The Court found that the dual nationality of the children created a link to EU law – On THE BASIS THAT the children are EU nationals residing lawfully in a MS. They were born into a country which they never left – the court used the language of movement to achieve its reasoning. The court seems random, no matter how the ratio was constructed there was no particular movement.
o 2. A refusal to change the names of the children would infringe the Treaty Articles 18 – against discrimination. Said that this would present a serious inconvenience at national level. The Court construes this in terms of movement, in terms of the future movement of the children.
• Ruiz Zambrano
o Involves Belgium again –
♣ The case involved work and residential permit of the parents
♣ Again there was no movement of the children
• The question was: if there is no movement then what is the EU link?
• Answer: the children would be deprived of their substance of their rights.
• The Court found that by denying TCN nationals would deprive the children of their EU citizenship – parents leave + children)
• Is this result random?
o Looking at movement and citizenship + proportionality –
o Furthermore, we have the Human Rights aspect as well about the right to life.
o One could say that the way the concept of movement was applied was not random, but it has certainly evolved over the years.
o From this case (Mc Carthy + Derici) cases evolved.
• Mc Carthy – a MS marrying a TCN involved two adults not children
o The Court said – if the TCN would be forced to moved from the MS they will not deprive the MS because the partner is an adult and is not obliged to leave.
♣ This is arguable, whether the case is random or not.
• Derichi – Two parents – a TCN and an EU citizen like above.
o Looking at the TCN residence
o Looking at the rights of the TCN, the Court says that the EU national could stay in the country with the child the EU did not have to move, therefore the TCN would have to leave.
Distinguish the cases – or see whether there is a common theme running along them.
= Random.
- ‘The CJEU hold in Alimanovic that a host Member State could refuse foreign jobseekers access to certain special non-contributory cash benefits although those benefits are granted to nationals of the host Member State concerned who are in the same situation. There is nothing surprising in this decision’.
Critically discuss.
• Based on Dano, MS can refuse specific cash benefits to other EU nationals based on the amount of time that they have resided in the host MS and nationality.
o This is not discrimination because the claimants can get some benefits, they simply cannot claim all of them. The host MS can exercise discretion in this area.
• An analysis of Alimanovic against the quote before you do before – decide how much description you put in.
o Look at the quote to determine the quote
♣ Foreign job-seekers + implications of their status for the outcome of this case.
♣ About non-contributory cash benefits + where do those benefits constitute social assistance – this is because we have an exception to access the social assistance in the Directive 2004/38 – this Directive looks at Article 34 – the right of equal treatment and the right to grant benefits to social assistance.
♣ Engage critically with this and give your point of view. Is there anything in those cases that is surprising or not.
• Second step for analysis – does the previous case law assert Alimanovic – then do a case comparison.
• Back to the case:
o The workers term
o Alimanovic and her daughter were ‘workers’ for the purposes of the Directive.
♣ As we have seen the principle of movement is quite broad. For the benefit of the Directive there must be some physical movement that actually takes place.
♣ Facts – Alimanonic had been a worker –
• The rules under Article 7 of the Directive 2004/38 – because at the time she applied for the assistance the Directive would abolish it – it said – that when you worked under 7 years and lost job would retain ‘worker’ status for 6 months – then would lose it.
• The issue here was that – when she lost her worker status she was not self-sufficient – so she could not benefit from Article 24 of equal treatment
• Furthermore, the Court explored Article 24(2) and said that this constituted social assistance, and those maintained a minimum standard of living – so
o A type of benefit we have here is i.e. job-seeker’s allowance – the Court contracted those benefits to other benefits about the minimum standard of moving.
• Is the decision surprising here surprising – NO
o Because Directive predicates on lawful residence (first you have to move, then you have to be self-sufficient) so the Directive has eligibility criteria and she did not meet it.
o Next under Article 24, under certain circumstances she will not be able to claim some benefits. Is there a specific qualification against benefits?
o Article 20 applies only to the scope of the Treaty.
o Once the analysis in this case has been done contrast with other cases – see Dano
o Dano
♣ Romanian nationals who exercised their movement in Germany.
♣ Rejection of benefits:
• Her status under Directive 2004/38 = no worker
• Second she abused her rights
• See if you want to claim benefits she must satisfy the criteria of the Directive – she must move and must be a worker – moreover, she never intended to be a worker – therefore she would never be able to claim – besides it seems that she simply wanted to benefit from the German benefits.
o Link Alimanovi + Dano
♣ Neither had ‘worker’ status.
♣ The ruling in A was set in D.
♣ A, had been a worker, and at least had had status under the Directive 2004, whereas in D there was no indication that she looked for work = use this to DISTINGUISH THE CASE.
o TROJAI case
♣ French citizen moved to Belgium – he had a migraine – applied for a benefit of ‘minimum assistance allowance’ at the time he was living not in doors – and was provided by the salvation Army basic jobs and cleaning services and was receiving a basic amount of remuneration. The Court said that it is highly likely or that he is a worker, and if he is then he can be categorised as a ‘worker’.
• Where a person can be seen a worker the Court will take a broad approach - otherwise it will take a very strict approach
• This was set in the case of Bray
• Confirms the rule of migrant job seekers. Says that EVEN IF THIS IS THE RULE YOU STILL TO ANALYSE IT IN A CASE BY CASE BASIS.
- In June 2014, Camilla, a UK national moved to Paris to take a translation job for the French Broadcasting Corporation (FBC). Camilla’s husband, Leon, a Russian national moved with her, planning to learn French and find a job. Camilla and Leon got married in May 2014.
After working for 6 months however Camilla was sacked as her French was deemed not to be good enough and her translations were not copy ready.
The FBC subsequently advertised for a new translator with the requirement that the job was only open to first language French speakers.
Camilla, now unemployed and annoyed joined a militant group which protests against French nationalism. At the first rally she attended, rocks were thrown at the French Parliament but there was little damage and those present (including Camilla) were cautioned that a repeat of such behaviour would lead to formal criminal action. The names of those apprehended were also recorded by the police. Camilla went to a second rally during which shop windows in the Rue de Rivoli were smashed, shops were raided and an attempt was made to set fire to the Louvre. Camilla, in a crowd at the heart of the trouble was once again apprehended. Following this occurrence she has been notified that investigations are being undertaken reviewing her presence in France and that she may be deported.
In the meantime Leon has been enjoying immersing himself in Parisian culture: an amateur cartoonist he draws caricatures of tourists around the Place Montmartre. His drawings do not pay very well, but he is the owner of two flats in Moscow that he rents. Refusing to accept Camilla’s recent activities he is thinking about divorce.
While drinking a hot chocolate in a coffee shop near Place Montmartre, Leon met Marie, who has a dual nationality (Belgian and French), and they both fell in love at first sight.
Having started to work for the UK Broadcasting Corporation in France, reporting on an upsurge in militant protests, Camilla would like to stay in Paris anyway but is concerned at her possible deportation. Besides, as the UK Broadcasting Corporation pays less than the FBC she is thinking of applying for the RMI, a non-contributory benefit granted to all French citizens whose annual income is below a minimum threshold.
Advise Camilla and Leon as to whether EU law can be of any assistance to them.
Facts
• Camilla and Leon moved to Paris, they got married in 2014. Camilla was sacked from her job six months after.
o Issues
♣ Could Camilla raise an action against the FBC for being sacked? And then on grounds of discrimination based on the fact that the job was advertised to first language first speakers?
♣ No – she did not receive direct discrimination. She was simply not good enough – She may raise discrimination on the new job advert.
• We need more detail to establish this
• Later on there is clear discrimination on grounds of nationality for those whose first language is not French.
• Use Articles 18 and 45 TFEU to say that discrimination on grounds of nationality is not permitted. In her case, they apply after the new job advert took place explicitly wanting native French speakers.
• Camilla has been apprehended twice for throwing rocks to the French Parliament and now she may be deported.
o Issues
♣ Could Camilla’s apprehension after joining a militant group against French nationalism have been caused by the discrimination she received at work?
♣ We do not know her real intentions for joining the militant group – as said before there is no direct discrimination on her but she could have joined the group to fight nationalism and discrimination later posed in her previous job
♣ Maybe.
♣ Camilla’s actions are however not justified; a criminal sanction would be well imposed.
♣ She has simply committed a criminal offence.
• Leon fell in love with Marie a dual nationality.
o Issues
♣ Would Leon have a right to stay in France if he decides to proceed with a divorce?
♣ No – despite efforts to integrate into society.
♣ He has only been in the country under a year. See cases and explore further issues
♣ Singh and others states that a third country nationals cannot retain their right of residence if divorce proceedings commenced before three years of their marriage had passed.
• Camilla wants to stay in Paris but is concerned about possible deportation.
o Issues
♣ Would Camilla be granted the right to stay in France?
♣ Yes – at mere sight.
♣ Camilla is an EU national with EU citizenship and the right to remain.
♣ However, this depends upon the French authority’s decision as she has committed a criminal offence.
♣ Camilla may stay in France unless otherwise asked to.
• The UK broadcasting pays less than the FBC, she is thinking of applying for the RMI ‘a non-contributory benefit’ granted to all French citizens whose annual income is below a minimum threshold.
o Issues
♣ Could Camilla be granted the non-contributory benefit?
♣ No – at first sight.
♣ Camilla is not a French citizen, she is British and the French authorities reserve the right to abstain specific benefits awarded only their citizens.
♣ However, we need more information. We need to know if Camilla is able to sustain herself and her household to if yes, she may be granted the benefit.
♣ Dano - Camilla cannot apply for the benefit. This depends on whether she earns enough, and this is not in the facts. However, overall the French authorities reserve the right to withhold the benefit from her.
• Conclusion
o Camilla is not able to raise discrimination based on Articles 18 and 45
o Camilla’s apprehension may be looked at the Court as her way of reacting against French nationalism. She may not be apprehended against direct discrimination in the new job advert.
o Leon cannot retain his residence right if he gets divorce.
o Camilla cannot apply for benefits.
♣ The situation in which EU law may be of help to Camilla is to avoid apprehension as she is against direct discrimination on nationalism.
Separate your clients. And advice them in their right.
Notes
The development of the concept of ‘persons’ in terms of:
• Economic understanding
• The term has evolved into citizenship.
• As the EU has expanded its competences, to what extent has the development of the concept of persons ran paralleled to it.
• Also consider the concept of citizenship. This is something that reflects the evolution of the EU and was added over time.
o In what was does it add?
o To what extent is it limited? If there are any qualifications at all.
♣ I.e., when looking at art 20.
♣ In one hand you could say that the rights of an EU citizen are limited – the writing of art 20 limits this
♣ To what extent does the art 20 extends the concept of citizenship and supremacy/ also quote Grzelczyk.
♣ If it has not reached fundamental status see why?
♣ Relate this to the constitutional arguments that we saw in semester 1. For example, democratic deficit.
• Also distinguish between GOODS V PERSONS
o What similarities do we have perhaps in terms of legal principles?
♣ Are they the same or similar in terms of free movement of goods
♣ Also what type of direct effect are they capable of. I.e. we know that goods are capable of vertical direct effect but not horizontal. The question is whether this is the same for persons. So we see to what extend Goods and Persons are treated the same.
o We also look at discrimination and market access.
• Revision – art 45 – think of how you can categorise the cases
♣ See what it means to be a ‘worker’ under art 45
♣ Another broad category is cases that deal with citizenship
♣ Within those you have sub-categories – i.e. deportation, we also have derivative rights = TCNs for third country nationals. (if they have some kind of relationship with EU citizen)
♣ Also look at the access to benefits
• For the worker
o Students access to benefits.
Notes
- State what the law is
- Say what the facts are
- Tie the law and facts together
Answer
• Start off saying that EU law does not apply to wholly internal situations – YOU MUST SHOW SOME KIND OF MOVEMENT – but there are 2 exceptions
- Garcia v Ve – would the national rule have an adverse effect on the client?
- Ruiz Zambrano would the EU citizens be deprived of their rights?
- Do we have a wholly internal situation – you still need to give your client / an explanation of where he derives his rights – it is only if he is a worker can derive rights OR Directive 2004/38 would give you other rights.
a. Is the client a ‘worker’ – part-time worker – job-seekers know cases related to those areas. - Eligibility –
a. Movement
b. Are you self-sufficient – but if a person has not physically move they can benefit from job-seekers/ but if they have not move they will not be able to benefit from the rights under the Directive.
c. Directly discriminatory/ distinctively applicable. If you have a rule – you can benefit under Art 25 – if the measure can’t be justified – ask – is the measure proportional – two limbs
i. Is it reasonable that the measure is trying to achieve the measure that it is trying to deal with?
ii. And that it does not go beyond what is necessary in order to achieve that objective? So are there less restrictive ways? Give them if so – and conclude - - Indistinctively applicable rule – is the measure liable to hinder free movement – if it is an indirect discriminatory rule – the language under rules is mandatory requirements. The next box is proportionality.
d. Finally – Rules regarding deportation – identify whether they have a link to the Directive. Articles 27-33 catch up the principles of the case law together. It is important to explain the legal context of those rules
i. Article 27 of the Directive – to deport someone it has to be on the basis of conduct/ Boucherean case Article 27 says that it must be based on Article 27.
e. Qualifications could come in workers, establishments – so when can these qualifications be used?
THE PROBLEM QUESTION
• IN THE EXAM use titles, names to help the structure and held the examiner.
Camilla
• Covers advice regarding the following issues:
- Move into the advice you need to give her
- Is it a wholly internal situation? You need to include all the building blocs
a. EU law does not apply to wholly internal situations
b. Camilla is an UK citizen, and moved so on this basis this is not a wholly internal situation. - In order to advise her we need to know what the source of her rights comes from? So create a link under Article 45 and also to the Directive and her access to benefits and the deportation rules.
a. First deal with the Treaty as the highest source of law – state the law + give a case – under Borouh is Camilla providing services for another for remuneration?
i. The facts tell us that she worked as a translator and changed jobs – based on the facts, then we would argue that Camilla is a worker under Article 45.
b. The next part is Directive 2004/38
i. State the law – show that she is a migrant + meets the eligibility criteria and the other ones. She has moved and is a worker for the purposes of the Directive. - Language requirement
a. Is this discrimination?
i. The job advert is ambiguous = indirect discriminatory measure and advising on that basis because it is an indirect discrimination –
ii. Do not assert, build argument up. First say what it is that you are going to say and build on it.
iii. The first response is what can be the defence – choose public policy defence because of the importance of having accurate translation for the news – and if the measure is justified then is it justified – yes? - The French broadcasting could look at qualifications or look for competencies test –
- Application for the RMI
a. Look at – does the client have a link to the Directive, which she does – start with Art 24 – the principle of equal treatment and 24(2) regarding social assistance, so with the issue at hand –
i. Is the client a worker –
ii. What kind of benefits is she applying for?
iii. Look at the test in Collins – this is whether your migrant worker has a link to the MS. - Deportation
a. Go through the deportation rules. Article 27-33
b. You have rules of personal conduct, right of conduct
c. EXPLAIN WHAT RIGHTS SHE WILL HAVE – say what she could benefit from using the Articles.
Leon
• His link back to EU law? + his link to Article 2004/38 – as a family MS he meets the criteria of the Directive and benefits from the Directive.
• Start with Article 7 of the Directive –
1. The issue is whether he divorces would retain the right of residence? Art 7-13 – does he satisfy the rules?
♣ Singh case [70] that affects the operation Article 13.
2. If he were to divorce Camilla and he loses his right of residency, can his relationship with Maria provide him with any rights?
♣ We are told that she has dual nationality
♣ Under Garcia v Vello she has dual nationality – her dual nationality would soften the application of the Directive
♣ Other aspect if we could an argument with the Directive, how are they linked – under Article 2 it talks about a durable relationship = if the EU citizen and the TCN – and the relationship is durable then under the Article then he could go to the French authorities and apply for residency.
