Freedom of Movement Workers Flashcards
1
Q
Clean Car
A
The employer could rely on 45
2
Q
Boukhalfa
A
Belgian worker in German embassy in Algiers, 45 still applied as it was covered by German law
3
Q
Levin
A
Worker has a community meaning.
Part-time work is included.
4
Q
Lehtonen
A
Triparte definition.
- Certain period of time
- Person performs services under the direction of another
- Receiving remuneration
5
Q
Lawrie Blum
A
Trainee teachers meet the triparte test
6
Q
Walrave and Koch
A
Professional pacemakers in cycle races met the definition as their work was genuine and effective
7
Q
Meeusen
A
Genuine economic activity is the test. Marital status is irrelevant.
8
Q
Bernini
A
Trainees should not be discriminated as long as their work is genuine and effective.
Working hours are irrelevant.
9
Q
Raulin
A
An on call waitress was held to not be conducting genuine and effective work as she was on a zero hour contract sometimes with no work.
10
Q
Bettray
A
Gov controlled drug rehab programme work was not genuine and effective
11
Q
Kempf
A
As long as work is genuine and effective, assistance from the State is irrelevant.
12
Q
Agegate
A
Fisherman’s payment in shares was sufficient for genuine and effective activity
13
Q
Steymann
A
Payment in accommodation and pocket money was sufficient for genuine and effective activity
14
Q
Antoinessen
A
If quasi workers were not covered by Article 45 it would jeopardise the chances that a national of a MS seeking work would find it in another MS. Right to expel after a ‘reasonable period of time’
15
Q
Lair
A
Must be some continuity between the previous occupational activity or study in order to receive welfare grants to prevent abuse, broadened all advantages entailing the possibility of improving workers living conditions generally granted to national workers
16
Q
Royer
A
EU citizens have a right to ‘look for and pursue occupation’
17
Q
What is a reasonable period of time in Antionessen?
A
6 months
18
Q
Collins and Lonnidis (two cases)
A
Equal treatment and access to employment should include the right for job seekers allowances
19
Q
CRD Article 6
A
Rights of residence for EU citizens up to 3 months
20
Q
CRD Article 7
A
If a worker resider for longer than 3 months they are entitled to stay for 5 years
21
Q
CRD Article 8
A
If a worker wants to stay longer than 3 months they may be required to register with authorities
22
Q
CRD Article 14(4)(b)
A
If EU citizens “can provide evidence they are continuing to seek employment and have a reasonable chance of being employed” they can stay for longer.
23
Q
CRD Article 16
A
After staying for 5 years they are entitled to permanent residence.
24
Q
CRD Article 17
A
Can be acquired earlier than 5 years if they have worked for 12 months and generally resided for 3 years.
25
Groener
Discriminatory on the language requirement was justified by encouraging the use of the Irish language
26
Reg 2011 Article 7
Citizens cannot be treated differently by reason of nationality in respect of any conditions of employment in particular remuneration, dismissal and reinstatement or re-employment.
27
Reg 2011 Article 7(2)
Originally restricted to only advantages connected to employment.
28
Cristini
Refers to all "social and tax advantages whether or not attached to the contract of employment" includes travel reductions in fares for large families.
29
Scrivner
Minimum means of substistence was considered an advantage applicable to all workers
30
O'Flynn
Indirectly discriminatory burial grants
31
Commission v Germany
Workers are entitled to bring family members with them
32
Article 16 CRD family members
Entitled to the same rights of residence as workers
33
Article 2 CRD Who is a family member?
Spouse, registered partner, direct descendants under 21 or dependent, direct dependants in ascending line
34
Reed
Not a family member according to the directive as unmarried, if worker nationals are allowed so too should non-nationals
35
Lebon
Members of family only have indirect rights to equal treatment, social benefits apply only if benefit to the worker themselves. Descendants over 21 not dependant do not qualify.
36
Baumbast
Children of a worker can complete their education in a MS, codified in Articles 12 and 13
37
Levin
Freedom of movement is to entail the abolition of discrimination
38
Commission v France
45 is directly applicable and would render inapplicable every contrary law.
39
Schiebel
Austrian law that the managing partner of military weapons had to be Austrian was directly discriminatory, didn't allow national security justification.
40
Sotgiu
German post office increased separation allowance paid to workers employed away from their place of residence within Germany but not abroad, indirectly discriminatory
41
Angonese
Indirectly discriminatory to require a certificate only obtained within a MS province, no justification for this.
42
Bosman
Directly affect all players access to the employment market in other MS. Capable of impeding free movement with no justification.
43
Lehtonen
Transfer deadline rules, only applied within the EU. Restriction to free movement.
44
Olympique Lyonnais v Bernard
Rule that young players trained by a particular club had to pay damages if they left was non discriminatory but impedes access. Therefore disproportionate.
45
Kranemann
Trainee lawyer's travel costs refused to be reimbursed, financial obstacle deterring free movement.
46
Graf
Too indirect and uncertain to be capable of being regarded as liable to hinder free movement of workers.
47
Groener
Justifications included the nature of the post and protection of identity and culture must be proportionate and nondiscriminatory.
48
Commission v Luxembourg
There were other more proportionate ways of achieving the same aim.
49
Bosman
Disproportionate to achieve aim
50
Bernard
Charging training fees can be justified if proportionate
51
Kranemann
Purely economic considerations cannot constitute valid public interest grounds. A trainee undergoing training outside of the public sector does not encompass employment by a private natural or legal person
52
Article 45(3) TFEU
Express treaty derogations. Of public policy, security or health
53
Article 27-33 Directive
Codified the case law extending derogations horizontally to all Union Citizens falling within the personal scope of the Directive (non-workers)
54
Article 27(2)
Assessment on public policy/security threat must be based on the personal conduct of the individual concerned and conduct must represent a 1. genuine, 2. present and 3. sufficiently serious threat affecting one of the fundamental interests of society.
55
Bonsignore
The deportation of a national of a MS as a preventative measure is not allowed.
56
Bouchereau
Previous criminal convictions are only relevant in so far as the circumstances which give rise to them are evidence of personal conduct consisting a present threat to the requirements of public policy
57
van Duyn
a MS in imposing restrictions justified on public policy is entitled to take into account the fact an individual is associated with some body or organisation the MS considers harmful even if it is not unlawful in their state.
58
Adoui and Cornuaille
Qualified van Duyn, theres a need to genuine and sufficiently serious threat to fundamental interests in society, cannot be found to be so unless the MS adopts repressive measures intended to combat such measures
59
Orfanopolous & Oliveri
Greek and Italian national in Germany drug addicts, Italian suffering from HIV likely to die in the short term. Do not lose status of a worker whilst in prison and rights still accrue, provided they find job in a reasonable time after release.
60
Olzabal
MS are not precluded from imposing administrative police measures limiting a right of residence, justified by public order or security. Must be proportionate.
61
Article 27(1) Directive
Public policy exception cannot serve economic ends such as unemployment levels or budgetary considerations
62
Article 27(3)-(4)
Notification of national decisions and remedies
63
Article 28(1), 28(2) and 28(3)
Factors to be taken into account before expulsion on grounds of public policy
28(1) higher threshold for permanent residents
28(2) higher threshold for permanent residents of over 10 years and
for minors 28(3)
64
Tsakouridis
Fight against crime in connection with dealing narcotics may be covered by "imperative grounds of public security 28(3) or serious grounds of public policy or security 28(2)
65
Article 29
Only diseases with epidemic potential and the like will justify restricting free movement
66
Public Service Definition
Direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or public authorities.
67
Commission v Belgium
Functional definition for public service: entrusted with the exercise of powers conferred by public law and with responsibility for safeguarding the interests of the State
68
Marine Mercante Española
Ship captain and chief mate had to be Spanish, did carry out state functions, not justified.
69
Marine Mercante Española exceptions
It will only be covered if the activities of the captain were not marginal and occasional. Not the case here, public law functions must be the main aspect of the role.
70
Bleis
Teachers in secondary education were not covered
71
Commission v Luxembourg
Posts in public transport, public utilities or other public bodies or local authorities are covered
72
Commission v France AG Mancini
The duties must involve acts of will which affect private individuals requiring their obedience or in the event of disobedience, compelling them to comply.
73
Allué and Coonan
Foreign language tutors in higher education were not covered
74
Commission v Italy
Not all research posts with the National Research Council, but only those posts involving management or advising the State on scientific/technical questions could fall in 'public services'
75
Sotgiu
Cannot justify discriminatory measures with regard to remuneration once they have been admitted to public service.
76
Legal relationship is irrelevant between
permanent or fixed term, public law or private law - Sotgiu
77
Commission Communication
Posts in bodies responsible for administering commercial services such as transport, electricity and gas, airlines, radio etc.
78
Citizenship.
| Article 18 TFEU
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited
79
Article 20 TFEU
1. Citizenship of the Union is hereby established. every person holding nationality shall be a citizen, additional to and not replacing national citizenship
2. Citizens shall enjoy a) the right to move and reside freely within the territory of MS exercised in accordance with conditions defined by the Treaties
80
Article 21 TFEU
Every citizen of the Union shall have the right to move and reside freely within the MS
81
Articles 49-55 TFEU
Self-employed/freedom of establishment of persons and companies
82
Articles 56-62 TFEU
Self-employed providers/free movement of services
83
Regulation 492/2011
Freedom of movement of workers within the Union
84
Regulation 883/2004
Social security systems for workers, self-employed and families
85
Push factors for legal development
Encourage free movement, guarantee equal treatment, increase skills and productivity, fill gaps in the employment market
86
Pull factors for legal development
Pressures and burdens on social security, "benefit tourism", status of third country nationals, control over citizenship, asylum seekers
87
Article 2(1) and 3(1) CRD
the directive applies to 'any person having the nationality of a MS' who moves or resides in a MS other than that of which they are a national
88
Article 3(1)
Also applies to family members who join them
89
Three important principles
1. Nationality of a MS
2. Element of movement
3. Family members
90
Article 2(2) a family member is...
a) the spouse
b) the partner, registered partnership on the basis of the legislation of the MS
c) direct descendants under 21 or dependant
d) dependent direct relatives in ascending line
91
Article 3
A MS can facilitate the entry and residence of other Family Members not included in 2(2) who are: dependents or members of the family of an EU citizen, serious health grounds require them to be cared for by the citizen, partner in a durable relationship, host MS is limited to undertaking 'an extensive examination'
92
Baumbast
Children were entitled to remain in education therefore parents could remain. Must be interpreted in light of Article 8. Unreasonable burden requirement must be appropriate, necessary and reasonable.
93
Akrich
Where a marriage is genuine, Article 8 is relevant. Infringement not to provide rights otherwise, cannot question motives for moving.
94
Uecker and Jacquet
Non-EU spouses cannot rely on freedom of movement where the MS national has not - "a wholly internal situation" falls outside the scope of the treaty
95
Pusa
Finnish national retired in Spain, if he wasn't living in Spain he would have had more disposable income. Must be in a position to challenge restrictions in the home MS
96
Micheletti
Whenever a MS has granted its nationality to a person, another MS cannot refuse to recognise it.
97
Zhu and Chen
Article 21 TFEU applies when one MS grants nationality to a child born in another MS when they have appropriate sickness insurance and the parents have sufficient resources so to not become a burden. If this was not allowed then Z's residence would be deprived of practical effectiveness.
98
Zambrano
Columbian couple with Belgian children refused permit would result in children having to leave, depriving them of genuine employment, substance of rights attached to their EU status
99
Rendon Marin
Father of two EU citizens refused entry may deny citizens of their rights but due to criminal record it could be decided at a national level
100
Dereci
EU law does not preclude a MS from refusing to allow a third country national to reside where he wished 1 to reside with his national family where they have nationality 2 never exercised their freedom of movement 3 provided it did not lead to the citizens being denied enjoyment of rights
101
McCarthy
Purely internal situation for residence permit of husband who was Jamaican when national lived in the same country as nationality
102
Article 4 CRD
All Union citizens with a valid identity card or passport and their family members who are not nationals and who hold a valid passport shall have the right to leave a MS to travel to another
103
Article 5 CRD
MS shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members with the same leave to enter territory. No entry visa or equivalent may be imposed on Union citizens.
104
Article 6 CRD
Union citizens and family members have a right to reside for 3 months
105
Article 7 CRD
Right to reside for up to 5 years if: a worker or self-employed, self-sufficient, student or family member defined in Article 2
106
Article 14(3) CRD
Recourse to a social assistance system is not an automatic reason for expulsion
107
Articles 8-11
Only family members who are not EU citizens must still apply for a residence permit valid for 5 years from the date of issue
108
Article 16 CRD
After 5 years of uninterrupted residence, entitled to permanent residence
109
Article 16(2) CRD
The right of permanent residence can only be lost due to an absence from the host MS exceeding two consecutive years
110
Articles 27-33 CRD
Right of temporary and permanent residence is subject to the generally applicable express derogations on grounds of public policy, security or health
111
Article 8(4) CRD
Cannot impose a limit of "sufficient resources" that is higher than the threshold of nationals for social security benefits
112
Article 18 TFEU and 24 CRD
Non-discrimination on grounds on nationality, subject to some limitations
113
Economically inactive persons?
MS may subject entitlement to requirements or restrictions justified in the public interest grounds e.g sufficient degree of integration or sufficient link with host MS. Habitual residence rule (time living), must be based on objective criteria, independent of nationality and proportionate (Butcher)
114
Martinez Sala
Direct discrimination as if she was a worker she could have received benefit
115
Trojani
As he possessed a residence permit, he was entitled to minimex under Belgian law and this was direct discrimination. Relied on Article 18.
116
Grzyelczyk
Students must have sufficient resources to avoid being a financial burden on the social assurance system and sickness cover. He satisfied this and was given a residence permit therefore could rely on 21 and 18 TFEU
117
Brown
Originally held maintenance grants are not subject to equal treatment.
118
Förster
A student who is a MS national and travels to study in another MS could rely on 18 to obtain a maintenance grant if they have resided for a certain length of time.
119
Bidar
Legitimate for a MS to grant loans only to students who have demonstrated a certain degree of integration and therefore conditional. However here UK made it impossible for any non-national student therefore disproportionate.
120
Article 24(2) CRD
MS are not obliged to grant access to social assistance in the first three months of residence
121
D'Hoop
Legitimate to require a genuine link but the geographic employment market requirement prescribed was too general and exclusive in nature and disproportionate in breach of Article 21
122
Ioannidis
Refusing tideover allowance due to a greek national despite completing secondary education in the MS was discriminatory and disproportionate. Genuine link was shown through education.
123
Collins
Residence requirement could be justified by the need to ensure genuine link between the person applying and the host MS employment market. Considered proportionate if rested on clear and objective, non-discriminatory criteria.
124
Patmalniece
UK Supreme Court refused granting payment to a benefit tourist, reiterated need to establish genuine link
125
Dano
Romanian national and son refused job seekers benefit. She had not entered to find a job, never been trained or worked. Not a resident according to CRD and could not therefore claim non-discrimination.
126
Alimanovic
Members may exclude job seekers from another MS from access to social assistance granted to home nationals in the same situation
127
Employment Market Access test
Does it restrict access to free movement of people? If so, needs to be objectively justified and proportionate
128
Garcia Avello
Articles 18 and 20 TFEU preclude the administrative authority of a MS from refusing to grant an application for a change of surname to which they are entitled according to the law and tradition of the second Member State. No good justification for the rule.
129
Tas-Hagen
National legislation placing certain nationals at a disadvantage because they have exercised their freedom of movement is a restriction of freedoms under Article 21
130
Article 10
Right of workers' children and dependants to equal access to education, apprenticeship and vocational training courses in the host MS regardless of nationality including grants and benefits
131
Casagrande
Right of residence and access to education for children (including all dependent minors) of EU citizens who are or have been economically active in the host MS
