FREE MOVEMENT WORKERS

Question 1

Which Article of TFEU?

Answer 1

45

Question 2

What are the 5 subsections of A45?

Answer 2

(1) Securing the free movement of workers
(2) Do not discriminate against foreign workers
(3) The rights of a worker
(4) Limitations
(5) Public sector jobs exempt

Question 3

Case for definition of a worker?

Answer 3

LAWRIE BLUM 1986

Question 4

How did LAWRIE BLUM 1986 define worker?

Answer 4

Someone who:

• During a period of time…
• Performs services under the direction of another…
• In return for renumeration

Question 5

What are the two aspects of definition of a worker?

Answer 5

ECONOMIC

FORMAL

Question 6

Cases for economic aspect?

Answer 6

STEYMANN 1986

KEMPF 1986

Question 7

STEYMANN 1986

Answer 7

• Payment doesn’t have to be money

- Working for food and board = renumeration

Question 8

KEMPF 1986

Answer 8

• Payment need not be enough to live on

- Can still rely on state benefits, as long as they are working

Question 9

Cases for formal aspect of a worker

Answer 9

LEVIN 1982

HOEKSTRA 1964

Question 10

LEVIN 1982

Answer 10

• Part-time work still counts as a worker

Question 11

HOEKSTRA 1964

Answer 11

• Someone who recently lost their job still counts as a worker
• Must be looking for another job and find one within a reasonable time (3 months)

Question 12

Case for A45(2) -> must not discriminate against foreign workers

Answer 12

COLLINS 2004

Question 13

COLLINS 2004

Answer 13

• Was denied access to job seekers allowance

- Unlawful -> should be entitled to any support that would be granted to a national worker

Question 14

Four basic rights of a worker under A45(3)

Answer 14

(i) Right to accept offers of employment in MS
(ii) Right to reside/move freely in the MS
(iii) Right to remain in MS after losing a job
(iv) Right to remain after having been employed for 5 years

Question 15

Right to enter/leave for a job

Answer 15

Found in DIRECTIVE 2004/38

Question 16

Right to reside

Answer 16

A6 of DIRECTIVE 2004/38

ANTONISSEN 1991

Question 17

What does A6 of DIRECTIVE 2004/58 say?

Answer 17

• Right to reside ‘freely for 3 months, then most prove it is likely they will get a job’
• I.e. proof of interview

Question 18

ANTONISSEN 1991

Answer 18

• Claimant had been in UK for 6 months and was still unable to find employment
• Held that was more than enough time to find a job and UK was correct in kicking him out of the country

Question 19

Criteria for right to remain after losing a job

Answer 19

If due to:
- Illness
- Involuntary unemployment (redundancy) 
- Vocational training 
ALLOWED TO STAY until they are able to work again/finish training

Question 20

Right to permanent residence after 5 years

Answer 20

Found in DIRECTIVE 2004/58 A16(1)

Question 21

Three main limitations in A45(4)

NB it’s a non exhaustive list

Answer 21

1. Public Policy
2. Public Security
3. Public Health

Question 22

Case law for Public Policy limitations under A45(4)

Answer 22

VAN DUYN 1974

A27(2) DIRECTIVE 2004/38

Question 23

VAN DUYN 1974

Answer 23

• Dutch woman wanted to come to UK for job as secretary of Church of Scientology
• UK said Scientology was socially harmful
• Were allowed to prevent her entry as a worker as it was dependent on UK cultural norms

NB was a judgement of the time, most likely not accepted now

Question 24

A27(2) DIRECTIVE 2004/58

Answer 24

• A person must be a ‘direct and immediate threat’

- Updates VAN DUYN 1974

Question 25

Case for Public Security limitation under A45(4)

Answer 25

BOURCHEREAU 1977

Question 26

BOURCHEREAU 1977

Answer 26

• Criminal case where worker came from France after committing a crime and the U.K. wanted to send him back
• Court identified 2 key factors to judge workers with previous convictions:
  (i) Seriousness of the crime
  (ii) How long ago the crime was committed

Question 27

Principle of public health limitations under A45(4)

Answer 27

• To prevent spread of contagious diseases/epidemics

- HIV and AIDS are not included under this to prevent any discrimination

Question 28

What does A45(5) say and why?

Answer 28

Public sector jobs excluded from free movement of workers
Most of these jobs are highly involved in national security so it is often in the MS’s interest to keep them with national/permenant citizens