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EU law > Freedom of Movement Workers > Flashcards

Freedom of Movement Workers Flashcards

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1
Q

Clean Car

A

The employer could rely on 45

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2
Q

Boukhalfa

A

Belgian worker in German embassy in Algiers, 45 still applied as it was covered by German law

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3
Q

Levin

A

Worker has a community meaning.

Part-time work is included.

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4
Q

Lehtonen

A

Triparte definition.

  1. Certain period of time
  2. Person performs services under the direction of another
  3. Receiving remuneration
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5
Q

Lawrie Blum

A

Trainee teachers meet the triparte test

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6
Q

Walrave and Koch

A

Professional pacemakers in cycle races met the definition as their work was genuine and effective

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7
Q

Meeusen

A

Genuine economic activity is the test. Marital status is irrelevant.

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8
Q

Bernini

A

Trainees should not be discriminated as long as their work is genuine and effective.
Working hours are irrelevant.

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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.

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10
Q

Bettray

A

Gov controlled drug rehab programme work was not genuine and effective

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11
Q

Kempf

A

As long as work is genuine and effective, assistance from the State is irrelevant.

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12
Q

Agegate

A

Fisherman’s payment in shares was sufficient for genuine and effective activity

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13
Q

Steymann

A

Payment in accommodation and pocket money was sufficient for genuine and effective activity

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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’

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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

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16
Q

Royer

A

EU citizens have a right to ‘look for and pursue occupation’

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17
Q

What is a reasonable period of time in Antionessen?

A

6 months

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18
Q

Collins and Lonnidis (two cases)

A

Equal treatment and access to employment should include the right for job seekers allowances

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19
Q

CRD Article 6

A

Rights of residence for EU citizens up to 3 months

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20
Q

CRD Article 7

A

If a worker resider for longer than 3 months they are entitled to stay for 5 years

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21
Q

CRD Article 8

A

If a worker wants to stay longer than 3 months they may be required to register with authorities

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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.

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23
Q

CRD Article 16

A

After staying for 5 years they are entitled to permanent residence.

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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.

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25
Q

Groener

A

Discriminatory on the language requirement was justified by encouraging the use of the Irish language

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26
Q

Reg 2011 Article 7

A

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.

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27
Q

Reg 2011 Article 7(2)

A

Originally restricted to only advantages connected to employment.

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28
Q

Cristini

A

Refers to all “social and tax advantages whether or not attached to the contract of employment” includes travel reductions in fares for large families.

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29
Q

Scrivner

A

Minimum means of substistence was considered an advantage applicable to all workers

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30
Q

O’Flynn

A

Indirectly discriminatory burial grants

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31
Q

Commission v Germany

A

Workers are entitled to bring family members with them

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32
Q

Article 16 CRD family members

A

Entitled to the same rights of residence as workers

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33
Q

Article 2 CRD Who is a family member?

A

Spouse, registered partner, direct descendants under 21 or dependent, direct dependants in ascending line

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34
Q

Reed

A

Not a family member according to the directive as unmarried, if worker nationals are allowed so too should non-nationals

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35
Q

Lebon

A

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.

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36
Q

Baumbast

A

Children of a worker can complete their education in a MS, codified in Articles 12 and 13

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37
Q

Levin

A

Freedom of movement is to entail the abolition of discrimination

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38
Q

Commission v France

A

45 is directly applicable and would render inapplicable every contrary law.

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39
Q

Schiebel

A

Austrian law that the managing partner of military weapons had to be Austrian was directly discriminatory, didn’t allow national security justification.

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40
Q

Sotgiu

A

German post office increased separation allowance paid to workers employed away from their place of residence within Germany but not abroad, indirectly discriminatory

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41
Q

Angonese

A

Indirectly discriminatory to require a certificate only obtained within a MS province, no justification for this.

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42
Q

Bosman

A

Directly affect all players access to the employment market in other MS. Capable of impeding free movement with no justification.

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43
Q

Lehtonen

A

Transfer deadline rules, only applied within the EU. Restriction to free movement.

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44
Q

Olympique Lyonnais v Bernard

A

Rule that young players trained by a particular club had to pay damages if they left was non discriminatory but impedes access. Therefore disproportionate.

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45
Q

Kranemann

A

Trainee lawyer’s travel costs refused to be reimbursed, financial obstacle deterring free movement.

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46
Q

Graf

A

Too indirect and uncertain to be capable of being regarded as liable to hinder free movement of workers.

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47
Q

Groener

A

Justifications included the nature of the post and protection of identity and culture must be proportionate and nondiscriminatory.

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48
Q

Commission v Luxembourg

A

There were other more proportionate ways of achieving the same aim.

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49
Q

Bosman

A

Disproportionate to achieve aim

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50
Q

Bernard

A

Charging training fees can be justified if proportionate

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51
Q

Kranemann

A

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

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52
Q

Article 45(3) TFEU

A

Express treaty derogations. Of public policy, security or health

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53
Q

Article 27-33 Directive

A

Codified the case law extending derogations horizontally to all Union Citizens falling within the personal scope of the Directive (non-workers)

54
Q

Article 27(2)

A

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
Q

Bonsignore

A

The deportation of a national of a MS as a preventative measure is not allowed.

56
Q

Bouchereau

A

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
Q

van Duyn

A

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
Q

Adoui and Cornuaille

A

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
Q

Orfanopolous & Oliveri

A

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
Q

Olzabal

A

MS are not precluded from imposing administrative police measures limiting a right of residence, justified by public order or security. Must be proportionate.

61
Q

Article 27(1) Directive

A

Public policy exception cannot serve economic ends such as unemployment levels or budgetary considerations

62
Q

Article 27(3)-(4)

A

Notification of national decisions and remedies

63
Q

Article 28(1), 28(2) and 28(3)

A

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
Q

Tsakouridis

A

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
Q

Article 29

A

Only diseases with epidemic potential and the like will justify restricting free movement

66
Q

Public Service Definition

A

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
Q

Commission v Belgium

A

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
Q

Marine Mercante Española

A

Ship captain and chief mate had to be Spanish, did carry out state functions, not justified.

69
Q

Marine Mercante Española exceptions

A

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
Q

Bleis

A

Teachers in secondary education were not covered

71
Q

Commission v Luxembourg

A

Posts in public transport, public utilities or other public bodies or local authorities are covered

72
Q

Commission v France AG Mancini

A

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
Q

Allué and Coonan

A

Foreign language tutors in higher education were not covered

74
Q

Commission v Italy

A

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
Q

Sotgiu

A

Cannot justify discriminatory measures with regard to remuneration once they have been admitted to public service.

76
Q

Legal relationship is irrelevant between

A

permanent or fixed term, public law or private law - Sotgiu

77
Q

Commission Communication

A

Posts in bodies responsible for administering commercial services such as transport, electricity and gas, airlines, radio etc.

78
Q

Citizenship.

Article 18 TFEU

A

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
Q

Article 20 TFEU

A
  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
Q

Article 21 TFEU

A

Every citizen of the Union shall have the right to move and reside freely within the MS

81
Q

Articles 49-55 TFEU

A

Self-employed/freedom of establishment of persons and companies

82
Q

Articles 56-62 TFEU

A

Self-employed providers/free movement of services

83
Q

Regulation 492/2011

A

Freedom of movement of workers within the Union

84
Q

Regulation 883/2004

A

Social security systems for workers, self-employed and families

85
Q

Push factors for legal development

A

Encourage free movement, guarantee equal treatment, increase skills and productivity, fill gaps in the employment market

86
Q

Pull factors for legal development

A

Pressures and burdens on social security, “benefit tourism”, status of third country nationals, control over citizenship, asylum seekers

87
Q

Article 2(1) and 3(1) CRD

A

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
Q

Article 3(1)

A

Also applies to family members who join them

89
Q

Three important principles

A
  1. Nationality of a MS
  2. Element of movement
  3. Family members
90
Q

Article 2(2) a family member is…

A

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
Q

Article 3

A

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
Q

Baumbast

A

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
Q

Akrich

A

Where a marriage is genuine, Article 8 is relevant. Infringement not to provide rights otherwise, cannot question motives for moving.

94
Q

Uecker and Jacquet

A

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
Q

Pusa

A

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
Q

Micheletti

A

Whenever a MS has granted its nationality to a person, another MS cannot refuse to recognise it.

97
Q

Zhu and Chen

A

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
Q

Zambrano

A

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
Q

Rendon Marin

A

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
Q

Dereci

A

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
Q

McCarthy

A

Purely internal situation for residence permit of husband who was Jamaican when national lived in the same country as nationality

102
Q

Article 4 CRD

A

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
Q

Article 5 CRD

A

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
Q

Article 6 CRD

A

Union citizens and family members have a right to reside for 3 months

105
Q

Article 7 CRD

A

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
Q

Article 14(3) CRD

A

Recourse to a social assistance system is not an automatic reason for expulsion

107
Q

Articles 8-11

A

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
Q

Article 16 CRD

A

After 5 years of uninterrupted residence, entitled to permanent residence

109
Q

Article 16(2) CRD

A

The right of permanent residence can only be lost due to an absence from the host MS exceeding two consecutive years

110
Q

Articles 27-33 CRD

A

Right of temporary and permanent residence is subject to the generally applicable express derogations on grounds of public policy, security or health

111
Q

Article 8(4) CRD

A

Cannot impose a limit of “sufficient resources” that is higher than the threshold of nationals for social security benefits

112
Q

Article 18 TFEU and 24 CRD

A

Non-discrimination on grounds on nationality, subject to some limitations

113
Q

Economically inactive persons?

A

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
Q

Martinez Sala

A

Direct discrimination as if she was a worker she could have received benefit

115
Q

Trojani

A

As he possessed a residence permit, he was entitled to minimex under Belgian law and this was direct discrimination. Relied on Article 18.

116
Q

Grzyelczyk

A

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
Q

Brown

A

Originally held maintenance grants are not subject to equal treatment.

118
Q

Förster

A

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
Q

Bidar

A

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
Q

Article 24(2) CRD

A

MS are not obliged to grant access to social assistance in the first three months of residence

121
Q

D’Hoop

A

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
Q

Ioannidis

A

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
Q

Collins

A

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
Q

Patmalniece

A

UK Supreme Court refused granting payment to a benefit tourist, reiterated need to establish genuine link

125
Q

Dano

A

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
Q

Alimanovic

A

Members may exclude job seekers from another MS from access to social assistance granted to home nationals in the same situation

127
Q

Employment Market Access test

A

Does it restrict access to free movement of people? If so, needs to be objectively justified and proportionate

128
Q

Garcia Avello

A

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
Q

Tas-Hagen

A

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
Q

Article 10

A

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
Q

Casagrande

A

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

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