L5: Free movement of persons

Question 1

Article 20 TFEU

Answer 1

Every national of a member state is a union citizen

Question 2

Article 21

Answer 2

Free movement rights to all union citizens

Question 3

Lawrie-Blum definition of a worker

Answer 3

For a certain period of time a person performs services for and under the direction of another person in return for which he receives renumeration

Question 4

Baumbast

Answer 4

German national who had been employed, then self-employed in the UK challenged refusal to renew his residence permit

COJ- residency rights to financially independent persons as long as they have sufficient financial means and sickness insurance

Question 5

Zhu and Chen

Answer 5

Chen (chinese national) entered the UK whilst pregnant and gave birth in NI, child acquired irish citizenship

Held: union citizen child entitled to rely on article 20 & 21- as a primary caregiver, the mother also entitled to remain in the UK otherwise the child’s citizenship rights would be deprived

Question 6

Zambrano

Answer 6

Z columbian nationals
Had 2 children, acquiring belgian nationality
Parents sought to take up residence but were refused
Court: refusal to grant a right of residence to the parents would deprive the children of the substance of citizenship rights conferred upon them

Question 7

Directive 2004/38

Answer 7

Allows all union citizens & family members irrespective of nationality, to leave their home state and move to and reside in another MS for up to 3 months without conditions or formalities other than requirement of valid passport/identity card

Question 8

Dano

Answer 8

-D claimed unemployment benefits but was refused
- argued discrimination on the basis of article 18
- D did not have sufficient resources & could not claim benefits
Directive 2004/38 provides that where the period of residence is in excess of 3 months but less than 5 years, economically inactive persons must have sufficient resources

Question 9

Article 45 (1)

Answer 9

Freedom of movement for workers shall be secured within the union

Question 10

Article 45 (2)

Answer 10

Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration, and other conditions of work and employment

Question 11

What is an example of an article 45 breach?

Answer 11

Car manufacturing plan in Germany. Majority of workforce are german. Not possible to pay portugese workers less

Question 12

What are the Article 45 rights?

Answer 12

1) To accept offers of employment
2) To move freely within the territory of MS for this purpose
3) To stay in a member state for the purpose of employment
4) To remain in the territory of the MS after having been employed in that state

Question 13

Is it possible for member states to reserve certain jobs for their own nationals?

Answer 13

Article 45- The provisions of this article shall not apply to employment in the public service

Question 14

What is the criteria for identifying if someone is a worker?

Answer 14

they provide a service
under the direction of someone else
in return for money

Question 15

Levin

Answer 15

Part time workers are workers, unless their work is purely marginal and ancillary

““since part-time employment, although it may provide an income lower than what is considered to be the minimum required for subsistence, constitutes for a large number of persons an effective means of improving their living conditions, the effectiveness of community law would be impaired and the achievement of the objectives of the treaty would be jeopardized if the enjoyment of rights conferred by the principle of freedom of movement for workers were reserved solely to persons engaged in full-time employment and earning, as a result, a wage at least equivalent to the guaranteed minimum wage in the sector under consideration”

Question 16

A likes Sweden, and would like to work in Sweden. Can A use his rights under art 45 to move to another MS to look for work?

Answer 16

Antonissen- Yes
Member states are free to set the reasonable time but at the end of the period, worker cant be expelled if they can prove they had a genuine opportunity/chance of being employedD

Question 17

Directive 2004/38

Answer 17

A job seeker can remain in the host state for at least 3 months

Question 18

Angonese

Answer 18

“freedom of movement for workers within the Community entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment”.

Bank required certificate of bilingualism which could only be obtained in bolzano
Difficulty in obtaining the certificate = disparity between domestic and foreign workers
Found to be disproportionate- no reason to allocate a particular building to issue certificates

Question 19

Bosman

Answer 19

Bosman wanted to move from Belgium to a french football team. French football team did not want to pay the fee
Bosman argued that the rule requiring the club to pay a fee to his old club after his contract had expired = restriction on the free movement of workers (prevented him moving freely)

Question 20

What is the test for whether there is a potential breach of article 45?

Answer 20

does the national rule in question have the effect of making free movement of workers less attractive?

Question 21

Indirect discrimination- art 45

Answer 21

If the rule has the EFFECT of restricting, hindering, rendering less attractive access to the employment market of another ms -> not allowed under article 45 TFEU

Question 22

What are potential justifications for breach of article 45?

Answer 22

grounds of public policy, public security or public health”.

Question 23

What is the proportionality test?

Answer 23

Is the national rule suitable?
Is the national rule necessary? Are there other measures that could have been taken which are less restrictive of trade?

Question 24

Article 21

Answer 24

“1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Question 25

Article 18

Answer 25

“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.

Question 26

Zambrano

Answer 26

Asylum seekers (colombian) living in Belgium unlawfully (wo work permit)
Colombian man was paying taxes
Belgian authorities wanted to deport him back to colombia
Children were born in belgium = belgium nationals -> EU citizens
Parents = 3rd country nationals
They argued that the father could not be deported as his children were EU citizens- if he was deported to columbia, his children would have to go with him. The effect of the belgian rule compelling father to leave would force his children to leave belgium

Question 27

Why could the father reside in Belgium from the citizenship rights of his children?

Answer 27

Art 20 precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status

Question 28

What was the key deciding factor in zambrano in allowing the father to stay?

Answer 28

a relationship of dependency- derived right more difficult to arise in relation to spouses than the care of a minor

Question 29

When is an expulsion measure justified?

Answer 29

provided that it is founded on the personal conduct of the third-country carer, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State,

Question 30

What is another requirement of third-country nationals wishing to obtain residency?

Answer 30

Sufficient resources

Question 31

McCarthy

Answer 31

Facts: McCarthy had dual Irish and British nationality but had only ever lived in the UK. She sought to rely on her EU law residence rights so that her Jamaican husband could enjoy a derived right of residence.

Held: Her claim should be rejected as not being covered by Article 21 TFEU (or the relevant secondary legislation) as this was a wholly internal matter since McCarthy had not previously exercised her free movement rights (see below).

Question 32

Dano

Answer 32

Facts: Ms Dano and her son, both Romanian nationals, resided in Germany living with Ms Dano’s sister who provided for them. Ms Dano claimed unemployment benefits but this was refused. Ms Dano argued that the principle of non-discrimination in Article 18 TFEU prohibited Germany’s domestic legislation excluding foreign nationals claiming social assistance where they enter the country to obtain such assistance or when the right of residence arises merely as a jobseeker.

Held: Ms Dano did not have sufficient resources and could not claim unemployment benefits on the basis of citizenship. Directive 2004/38 provides that where the period of residence is in excess of three months but less than five years, as in this case, economically inactive persons must have sufficient resources (Article 7 below). Furthermore, the Court held that the Charter of Fundamental Rights did not have a bearing on the case as when Germany set out in national law the conditions for granting such benefits, it was not implementing EU law. The Court is taking a strict line here on so called ‘benefit tourism’.

Question 33

When can a student/person with independent means reside in a ms for more than 3 months but less than 5?

Answer 33

Must have sufficient resources for the,selves not to become a burden on the state’s welfare system

Question 34

What do students have to do to prove sufficient resources?

Answer 34

Declaration

Question 35

Bidar

Answer 35

Facts: Bidar, a French national, had come to the UK with his mother (who died soon after their arrival), completed his secondary education (whilst living with his grandmother), and started a course at University College, London. His student loan application was rejected on the ground that he was not settled in the UK.

Held: The Court of Justice held that, in view of developments since Lair and Brown, notably the creation of Union citizenship, the Treaty right in [Article 18 TFEU] granted equality with nationals regarding student grants and loans, though a Member State would be justified in requiring a certain degree of integration into the state’s society.

Question 36

‘Family member’

Answer 36

irrespective of nationality, the Union citizen’s spouse and registered partner; direct descendants under 21 or those who are dependent, and those of the spouse or registered partner; and dependent direct relatives in the ascending line and those of the spouse or registered partner

Question 37

Coman

Answer 37

Facts: Mr Coman, a Romanian citizen, had married his husband, a US citizen, in Belgium while residing there. He tried to return to Romania with his husband, but Romania refused residence to the latter, as it does not recognise same-sex marriage.

Held: the term ‘spouse’ within the meaning of the Directive is gender-neutral and may therefore cover the same-sex spouse of the EU citizen concerned (provided the marriage has taken place within an EU Member State).

Question 38

How is equal treatment different for students, family members and PIMS

Answer 38

no entitlement to social assistance during the first three months of residence and no right to student grants or loans

Question 39

When is right of permanent residence granted?

Answer 39

citizens who have resided in the host state legally for 5 years

Question 40

Justifications for breach

Answer 40

public policy & security, personal conduct presenting a present threat

Question 41

Public health

Answer 41

Must be of epidemic potential/infectious/contagious
diseases occuring after 3 months residence do not justify expulsion

Question 42

Laval

Answer 42

Latvian school refurbishment
used latvian workers for lower wage
swedish union wanted latvian co to apply swedish collective agreement
took industrial action = breach

Question 43

What rights do migrants enjoy?

Answer 43

depends on classification and duration of residence

Question 44

are non-economically active migrants entitled to social assistance & student loans?

Answer 44

no

Question 45

Coman

Answer 45

of same-sex marriage is recognised in host state, the state must admit the couple, regardless of recognition in the home state

Question 46

What is meant by equal treatment?

Answer 46

no discrimination based on nationality

Question 47

when can a directly discriminatory measure be justified?

Answer 47

express derogations

Question 48

Vlassopoulou

Answer 48

host state has to compare migrants qualifications & abilities with those required by national to see if they have the appropriate skills. if equivalent, required to recognise diploma

Question 49

Alpine Investments

Answer 49

Cold calling breached art 56
affects market access

Question 50

Eglise de scientologie

Answer 50

derogations cant be purely economic
subject to principle of proportionality

Question 51

examples of ORPI

Answer 51

rules for protecting service recipients
worker protection
consumer protection
protection of intellectual property
conservation of historic and artistic heritage