Retained EU Law 2 Flashcards
Jürgen, a German citizen, travels to Sweden to take up a post to work part-time 12 hours per week for a Swedish newspaper as a photographer.
Which ONE of the following statements is CORRECT?
After his initial right of residence for three months, he no longer has a right of residence in Sweden as he is working part-time.
After his initial right of residence for three months, he has a right of residence in Sweden for longer than three months provided he has comprehensive sickness insurance.
After his initial right of residence for three months, he has a right of residence in Sweden for longer than three months provided he is not an undue burden on the host State’s resources.
After his initial right of residence for three months, he has a right of residence in Sweden for longer than three months as he is a worker.
Feedback
Option D is in fact correct. As all the options suggest, Jürgen has an initial right of residence for up to three months (Article 6(1) of Directive 2004/38). After that, although he is only working part-time, he has a right of residence for more than three months under Article 7(1)(a) of Directive 2004/38.
Option A is therefore wrong as it suggests that part-time workers do not qualify as workers.
Options B and C are wrong because the provisos set out in them do not apply to workers.
Gabrielle, a Belgian national, married Louise, a British citizen, three months ago. Gabrielle moved last week from Belgium to Amadora, Portugal, to work there and Louise would like to join her.
Which ONE of the following statements is CORRECT?
Louise cannot join Gabrielle as Louise is not a national of an EU Member State.
Louise can join Gabrielle as she is the spouse of Gabrielle who has moved from her home State to a host State
Louise can join Gabrielle as she is a national of a former EU Member State and so has continuing rights of free movement.
Louise can join Gabrielle provided she has comprehensive sickness insurance.
Feedback
Option B is actually the correct answer. As Louise is Gabrielle’s spouse, she is a family member of Gabrielle (Article 2(2)(a) of Directive 2004/38). Under Article 6(2) she has the right of residence as for up to three months as the family member of a Union citizen who has exercised their right of free movement, and she has the right of residence for more than three months under Article 7(2) as the family member of a migrant worker in Portugal, the host State.
Option A is wrong as family members can accompany and join migrant Union citizens irrespective of their nationality.
Option C is wrong as UK citizens lost their rights of free movement at the end of the transition period due to the UK’s decision to leave the EU.
Option D is wrong as the rights of family members of workers are not contingent on their having comprehensive health insurance.
Assane is a French national who has applied for a job as a clerical officer with the fire service in Tallinn, Estonia. His application for the post is rejected on the grounds that he is not an Estonian national, as employment in key public sector posts is limited to Estonian nationals.
Which ONE of the following options CORRECT?
Assane is unable to challenge the rejection of his application as Article 45 does not apply to employment in the public service.
Assane is unable to challenge the rejection of his application as the Tallinn fire service will be able to rely on the public policy exception in its defence.
Assane is able to challenge the rejection of his application as the ECJ has construed the public service exception narrowly and it is very unlikely that it would apply to a clerical post.
Assane is able to challenge the rejection of his application as Member States are not able to exclude EU nationals from any public sector posts at all.
Feedback
Option C is in fact the correct answer. While Article 45(4) does provide for a public service exception, the ECJ has held that it applies only to ‘‘posts involving the exercise of official authority and functions related to safeguarding the general interests of the State’ (Case 149/79 Commission v Belgium).
Option A is therefore wrong as it construes the public service exception too widely.
Option D is wrong because it ignores the existence of the public service exception.
Karin, a Danish national working in Valencia, Spain, is convicted of avoiding a bus fare of €2.50. She is fined €50.00.
Can the Spanish authorites deport her?
Yes, because they can rely on the public policy exception in Article 45(3) to deport her as she has committed a criminal offence.
Incorrect:
Yes, because on her conviction she forfeited her status as a worker under Article 45.
No, because Member States can only invoke the public policy exception in Article 45(3) to deport someone who has been convicted of a serious offence and remains a serious threat to society.
No, because it would be discriminatory for the Spanish authorities to deport a Danish national when they cannot deport Spanish nationals.
Feedback
Option C is correct. Member States can deport nationals from other Member States on public policy grounds, but deportation must be a proportionate sanction. It would be disproportionate to deport someone for committing a minor offence.
Option A is wrong as Karin’s offence is not sufficiently serious to justify her deportation.
Option B is wrong as Karin’s conviction does not change her status as a worker.
Option D is wrong. While arguably it is discriminatory for a state to deport foreign nationals when it cannot deport its own, Article 45(3) and Directive 2004/38 do permit Member States to deport nationals from other Member States, albeit in narrowly defined circumstances.
Maryam, a Swedish national, is working in Ostrava, the Czech Republic. The local municipality’s library service offers Czech nationals free access to its computers, but charges non-nationals 10 koruna (about 35p) per hour to use its computers. The municipality says that it cannot afford to extend free access to non-nationals.
Which ONE of the following is CORRECT?
As Maryam is a worker, she can rely on Regulation 492/2011 to claim free access to the computers as that is a ‘social’ advantage’.
Maryam cannot challenge the requirement to pay a fee as the municipality can rely on the public service exception to justify its policy.
Maryam cannot challenge the requirement to pay a fee as the municipality cannot afford to extend free access to non-nationals.
As Maryam is a worker, she can rely on Regulation 492/2011 to claim free access to the computers as that is a ‘social’ advantage’, but only because the municipality is a public body.
Feedback
Option A is in fact correct. Article 7(2) Regulation 492/2011 states that workers from other Member states should have ‘the same social and tax advantages as national workers’. A social advantage goes beyond something a worker is entitled to in their contract of employment and would include something like free access to computers in a municipal library (Case 32/75 Cristini v SNCF).
Option B is wrong because the public service exception can only be used to justify a refusal to employ someone in a high-ranking sensitive post in the public sector, while option C is wrong because economic grounds cannot be used to justify discriminatory conduct.
Although the municipality is a public body, option D is incorrect as EU regulations are capable of having direct effect horizontally and vertically. Regulation 492/20011 is therefore enforceable against private bodies, as well as public.
Is the following statement true or false?
The citizens’ rights provisions in the Withdrawal Agreement are not enforceable in UK courts.
True
False
Feedback
Yes, the statement is indeed false. Section 7A of EU(W)A 2018 gives direct effect to those citizens’ rights provisions that meet the criteria for direct effect.
Petra, a national of Bosnia-Herzegovina, is resident in the UK and has recently applied for settled status, having previously been granted pre-settled status. Her application was rejected. Petra is married to Marko, a Croatian national whose application for settled status was approved.
Which ONE of the following is CORRECT?
As Petra is not a national of an EU Member State, she cannot rely on the Withdrawal Agreement to challenge the rejection of her application.
Petra can rely on the direct effect of the Withdrawal Agreement as she is the spouse of a migrant Union citizen.
Petra cannot rely on the Withdrawal Agreement as it only has effect in international law, not domestic UK law.
Petra can rely on the direct effect of the Withdrawal Agreement as she is relying on it against the UK government, and not a private body.
Feedback
Option B that is correct. It is clear from the Withdrawal Agreement that family members of migrant Union citizens as defined by Article 2(2) of Directive 2004/38 fall within its scope. As she and Marko were granted pre-settled status, it is also clear that they exercised their rights of free movement before the end of the transition period so can rely on the Withdrawal Agreement. Article 4(1) of the Withdrawal Agreement states that its provisions should be capable of having direct effect in EU Member States and the UK, and the UK implemented it via s 7A EU(W)A 2018.
Option A is wrong as non-EU national family members can rely on the Withdrawal Agreement.
Option C is wrong as s 7A EU(W)A 2018 incorporated s 7A EU(W)A 2018 into UK law.
Option D is wrong. Although Petra is relying on the Withdrawal Agreement vertically in this scenario. there is no reason why it should not also have horizontal direct effect.
Charel, a Luxembourgish national, is resident in the UK with settled status. He has applied for a post as a senior social worker with the Birmingham City Council. His application has been rejected as the council only recruits British, Irish and Commonwealth citizens to senior social worker posts.
Which ONE of the following is CORRECT?
Although Charel in theory can rely on the principle of non-discrimination set out in the Withdrawal Areement, Article 45(2) TFEU, Regulation 1612/68 and Directive 2004/38 to challenge the rejection of his application, the council will probably be able to invoke the public service exception to justify its policy.
Charel cannot challenge the rejection of his application invoking the Withdrawal Agreement as the UK is no longer an EU Member State and access to jobs is outside its scope.
Charel can probably rely on the Withdrawal Agreement, Article 45(2) TFEU, Regulation 1612/68 and Directive 2004/38 to challenge the rejection of his application if he can show that there are no sufficiently qualified British, Irish and Commonwealth citizens applying for the job.
Charel can probably successfully rely on the principle of non-discrimination set out in the Withdrawal Agreement, Article 45(2) TFEU, Regulation 1612/68 and Directive 2004/38 to challenge the rejection of his application.
Feedback
That is not right - option D is the correct answer. EU citizens with settled status must normally be treated equally to British citizens when it comes to access to jobs.
Option A is wrong, as the post of senior social worker is unlikely to be the type of job to which the public service exception applies, as the ECJ has defined the exception narrowly. (Incidentally, the requirement for British, Irish and Commonwealth citizenship does apply to joining the British army.)
Option B is wrong as the Withdrawal Agreement does apply to access to employment.
Option C is wrong as Charel does not have to show the lack of suitably qualified British, Irish or Commonwealth applicants.
Bogusia is a Polish national working in the UK. She as brought a claim before the High Court alleging that the Surrey County Council has denied her a ‘social advantage’ as referred to in Article 24(1)(e) of the Withdrawal Agreement and Article 7(2) of Regulation 492/2011. The council denies the benefit in question is a social advantage, and the High Cout judge hearing the case is unsure.
Which ONE of the following is CORRECT?
The High Court judge must make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’.
The High Court judge may make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’.
The High Court judge cannot make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’, but must interpret it herself in the light of retained EU case law.
The High Court judge may ask the Supreme Court to make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’, as only the Supreme Court may make such references.
Feedback
Option B is in fact correct. UK courts may make Article 267 references to the ECJ regarding the interpretation of the citizens’ rights provisions of the Withdrawal Agreement for eight years from the end of the transition period. However, they are not obliged to do so; they have a discretion whether or not to refer.
Option A is wrong, as making references to the ECJ in this context is discretionary, not mandatory.
Option C is wrong, as the High Court judge may make a reference.
Option D is wrong, as it is the High Court judge’s decision whether or not to make a reference to the ECJ. She does not need the Supreme Court’s permission.
Chioma, a British citizen, is living in Verona, Italy with her husband, Pierre, a French national working there. The couple met three months ago while Chioma was on holiday in France and moved to Verona last month a few days after their wedding. She works part-time in a bar and plans to spend the rest of her time sight-seeing. She discovers that low paid EU nationals working in Verona are entitled to free entry to all museums in Verona that are under the control of the Italian government or Verona municipality. Chioma falls within the definition of low paid worker but is refused free entry.
Is Chioma entitled under EU law to claim free entry to the museums in Verona?
No, because she is a British citizen and has no rights under EU law following the UK’s exit from the EU.
Yes, because as a family member of a Union citizen working in Italy, she is entitled to equal treatment with Italian nationals irrespective of her nationality.
No, because only family members of Union citizens who themselves are nationals of an EU Member State are entitled to equal treatment with host State nationals.
Yes, because under the Withdrawal Agreement she is entitled to equal treatment with Italian nationals.
No, because only family members of Union citizens who work full-time are entitled to equal treatment with host State nationals.
Feedback
Option B is actually correct. Pursuant to Article 24(1) of Directive 2004/38, the family members of migrant Union citizens are entitled to equal treatment with the host Member State’s nationals, irrespective of their nationality. As Chioma is married to Pierre, she is a family member of a migrant Union citizen (Article 2(2)(a) of Directive 2004/38). The museums concerned are public bodies, so Chioma can rely on the directive’s vertical direct effect. (As free entry to museums is most probably a ‘social advantage’ within the scope of Article 7(2) of Regulation 492/2011, Chioma would probably have been able to rely on Article 7(2) if her claim had been a horizontal one, as she is a spouse of a migrant worker.)
Option A is wrong because Chioma does have rights under EU law even though the UK has left the EU, albeit her rights are contingent on her being the family member of a migrant worker. She does not have any free-standing rights of her own, unlike the position during the UK’s membership of the EU.
Option C is wrong as Directive 2004/38 makes it clear that the provisions regarding family members apply equally to non-EU nationals.
Option D is wrong as the Withdrawal Agreement protects the rights of British citizens who were resident in the EU at the end of the transition period. Chioma therefore does not come within its scope.
Option E is wrong. It is clear from ECJ case law that part-time workers are workers and so have the same rights as full-time workers. Moreover, family members of the self-employed, students and persons with sufficient resources also benefit from Directive 2004/38.
Vasil, a Bulgarian national, has settled status in UK. He works as a research scientist for Denton Pharmaceuticals Ltd (Denton), a pharmaceutical company incorporated in England. Lindsay, a British citizen, also works for Denton as a research scientist. Denton would like to send one of them to work for its German subsidiary in Stuttgart for one year.
Which of the following options describes Denton’s most likely course of action?
Denton can choose to send either Vasil or Lindsay as they both benefit from EU free movement rules as both would be working for a company based in Germany.
Denton can send neither Vasil nor Lindsay as, after the UK’s exit from the EU, the employees of English companies no longer benefit from EU free movement rules.
Denton can send neither Vasil nor Lindsay as, according to the Withdrawal Agreement, Vasil’s acquisition of settled status means that he no longer benefits from EU free movement rules and Lindsay does not have any free movement rights as a result of the UK’s exit from the EU.
Denton should send Lindsay as, although she will need a German visa, Vasil will lose his settled status if he works in Germany and so would be unable to return to the UK to work for Denton without a UK visa.
Denton should send Vasil as Vasil benefits from EU free movement rules as a national of a Member State and Lindsay does not have any free movement rights as a result of the UK’s exit from the EU.
Feedback
Option E is in fact correct. EU citizens with settled status can move to EU Member States to work pursuant to Article 45 TFEU and Directive 2004/38. British citizens do not have rights of free movement any longer, so Lindsay would need a visa to work in Germany for one year.
Option A is wrong, as working for a company in an EU Member State does not give non-EU nationals such as Lindsay any rights of free movement.
Option B is wrong, as Vasil does not lose his EU rights of free movement by working for a non-EU company outside the EU.
Option C is wrong as settled status does not deprive Vasil of his EU rights of free movement. However, option C does set out the position regarding Lindsay correctly.
Option D is wrong as Vasil can spend up to five years in a row outside the UK without losing his settled status.
Assume that an Act of Parliament (fictitious) enacted three months ago has given public bodies the power to rent land at a discounted rent to businesses owned by people permanently resident in the UK in parts of England which have higher than average unemployment. The aim of the legislation is to boost employment in those areas. The Act makes no reference to any legislation regarding the UK’s exit from the EU or the Withdrawal Agreement betwen the UK and EU.
A man who has Slovenian nationality and owns a business seeks to rent land at a discounted rent from a public body. The public body refuses to give him a discounted rent. Although it accepts the land is an area of above average unemployment, it states that is unable to give him a discount as he only has pre-settled status in the UK and so does not meet the qualifying condition of permanent residence. The public body is correct in stating that pre-settled status does not grant a right of permanent residence.
Can the man challenge the refusal to give him discounted rent?
No, because the qualifying condition is contained in an Act of Parliament and so overrides any provision in the legislation regarding the UK’s exit from the EU or the Withdrawal Agreement which would entitle the man to a discounted rent.
No, because the man cannot rely on any rights to equal treatment granted to him by the Withdrawal Agreement to claim a discounted rent as international treaties are not enforceable in English courts.
Yes, because the man can rely on the direct effect of the right to equal treatment granted to him by the Withdrawal Agreement to claim a discounted rent in an English court.
Yes, because the man can rely on the directly effective right to equal treatment granted to him by Article 45 TFEU as retained EU law to claim a discounted rent in an English court.
Yes, because the English courts must disapply the qualifying condition regarding permanent residence in the Act of Parliament as it breaches the principle of equality which is a retained general principle of EU law.
Feedback
Option C is actually the correct option. Section 7A EU(W)A 2018 gives direct effect to the Withdrawal Agreement, and case law regarding the effect of s 2(1) ECA 1972 indicates directly effective provisions of the Withdrawal Agreement will prevail over inconsistent national legislation in the same way that directly effective provisions of EU law did until IP completion day.
Option A is wrong as the Act would have to override in express and unambiguous terms for it to prevail over directly effective provisions of the Withdrawal Agreement.
Option B is wrong, as the European Union (Withdrawal Agreement) Act 2020 expressly incorporated the Withdrawal Agreeement into UK law.
Option D is wrong as directly effective rights under Article 45 TFEU do not form part of retained EU law, as UK immigration legislation coming into force on IP completion day repealed much EU legislation on the free movement of persons in accordance with the UK government’s policy to leave the single market and end free movement.
Option E is wrong as, although the principle of equality is a retained general principle of EU law, EU(W)A2018 provides that general principles cannot now be used to strike down UK legislation.
Assume that an Act of Parliament (fictitious) enacted three months ago has given local authorities the power to rent council houses at a discounted rent to people permanently resident in the UK in parts of England which have high levels of multiple deprivation. The aim of the legislation is to make rents in those areas more affordable. The Act explicitly states that it will override any legislation regarding the UK’s exit from the EU or the Withdrawal Agreement between the UK and EU.
A woman who has Dutch nationality seeks to rent a council house at a discounted rent from her local authority. The local authority refuses to give her a discounted rent. Although it accepts the property is in an area with a high level of multiple deprivation, it states that is unable to give her a discount as she only has pre-settled status in the UK and so does not meet the qualifying condition of permanent residence. The local authority is correct in stating that pre-settled status does not grant a right of permanent residence.
Can the woman challenge the refusal to give her discounted rent?
No, because the qualifying condition is contained in an Act of Parliament which expressly overrides any provision in the legislation regarding the UK’s exit from the EU or the Withdrawal Agreement which would entitle the woman to a discounted rent.
No, because the woman cannot rely on the direct effect of the right to equal treatment granted to her by the Withdrawal Agreement to claim a discounted rent in an English court as Parliament had a good reason for overriding the Withdrawal Agreement.
Yes, because the woman can rely on the direct effect of the right to equal treatment granted to her by the Withdrawal Agreement to claim a discounted rent in an English court.
Yes, because the woman can rely on the direct effect of the right to equal treatment granted to her by the Withdrawal Agreement to claim a discounted rent in an English court as it is contrary to international law for Parliament to override the Withdrawal Agreement.
Yes, because the English courts must disapply the qualifying condition regarding permanent residence in the Act of Parliament as it breaches her right to respect for her home under Article 8 ECHR.
Feedback
Option A is in fact correct. Due to the principle of parliamentary sovereignty, Parliament can pass an Act having this effect. Although the EU (Withdrawal) Act 2018 is a constitutional statute, clear and unequivocal words in a later Act would be sufficient to override s 7A.
Option B is wrong as Parliament does not need to have a good reason for passing an Act overriding the Withdrawal Agreement.
Option C is wrong as, although s 7A cannot be impliedly repealed, the clear words in the later Act will override its application in the present case.
Although legislation overriding the Withdrawal Agreement would probably breach international law, Option D is wrong as parliamentary sovereignty means that Parliament can legislate contrary to international law.
Option E is wrong as, even if the Act were to infringe the woman’s Article 8 rights, the courts cannot disapply legislation that infringes Convention rights. Under s 4 HRA 1998 the higher courts can issue a declaration of incompatibility, but that does not have any effect on the validity of the legislation.
A man, a Spanish citizen with settled status in the UK, is claiming before an English court that his right to equal treatment under the Withdrawal Agreement has been breached. The case has been appealed to the Supreme Court as the relevant article in the Withdrawal Agreement is ambiguous.
How should the Supreme Court resolve the ambiguity?
The Supreme Court must refer the interpretation of the relevant article to the ECJ pursuant to Article 267 TFEU.
The Supreme Court may refer the interpretation of the relevant article to the ECJ pursuant to Article 267 TFEU or interpret the article itself.
The Supreme Court must interpret the relevant article itself using standard English principles of statutory interpretation.
The Supreme Court must interpret the relevant article itself using principles of statutory interpretation derived from EU law.
The Supreme Court should interpret the article itself but the losing party has a right of appeal to the ECJ pursuant to Article 267 TFEU.
Feedback
Option B is in fact correct. The Withdrawal Agreement gives the Supreme Court the power to refer the question of interpretation to the ECJ, but it does not have to do so; it could decide the matter itself. (Note that this is different from the position while the UK was a Member State. Where there was an uncertainty about the meaning of a piece of EU law, the Supreme Court (as the highest court in the UK) would have been obliged to refer the question to the ECJ.)
Option A is wrong as it states the Supreme Court must refer the question to the ECJ whereas the Supreme Court has a discretion whether or not to refer.
Option C is wrong as the Supreme Court does not have to interpret the article itself; it can refer the interpretation to the ECJ. Bearing in mind the context, it is likely that the Supreme Court would take a purposive approach to the Withdrawal Agreement rather than simply applying standard English rules of statutory interpretation. Indeed, if the ambiguous article involves a point of EU law, the Supreme Court should apply EU principles of interpretation.
Option D is wrong as the Supreme Court can refer the interpretation of the article to the ECJ.
Option E is wrong as the Article 267 procedure is not an appeals procedure; there is no further appeal from the Supreme Court’s decision whether or not it refers the question of interpretation to the ECJ.
The EU adopted a directive setting a cap on fees that can be charged to hospital patients using hospital car parks. The directive’s implementation date was 30 November 2020, but the UK government took no steps to implement it.
A patient using an NHS hospital car park over the past three months has been charged car parking fees well in excess of those permitted by the directive. There is no pre-IP completion day CJEU case law regarding this particular directive, but you may assume for this question that there is case law to the effect that directives that impose caps on charges for the provision of services are capable of direct effect. The provisions in this directive are very clearly drafted.
Which of the following statements best summarises the patient’s right to claim back the excess fees?
As the UK government should have implemented the directive before IP completion day, the patient can recover the excess fees as the rights granted by the directive have become retained EU law, as they are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
Although the UK government should have implemented the directive before IP completion day, it is unlikely that the patient can recover the excess fees as the rights granted by the directive probably have not become retained EU law.
As the UK government should have implemented the directive before IP completion day, whether the patient can recover the excess fees depends on whether UK courts consider the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
As the UK government should have implemented the directive before IP completion day, the patient can recover the excess fees by relying on the direct effect of the directive as retained EU law as the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
As the UK government should have implemented the directive before IP completion day, whether the patient can recover the excess fees by relying on the direct effect of the directive as retained EU law depends on whether UK courts consider the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
Feedback
Well done, option C is correct. Pursuant to s 4(2)(b) EU(W)A 2018, directly effective rights granted by a directive are only preserved as retained EU law if they are of a kind that have been recognised by the CJEU or a UK court or tribunal in a case decided before IP completion day. The meaning of ‘of a kind that have been recognised’ is ambiguous; it could mean that the actual rights granted by the particular directive must have been recognised in case law (narrow meaning) or merely that the general nature of the rights granted by the directive in question must have been recognised in case law (broad meaning). Option C reflects this ambiguity which will only be resolved once a UK court has ruled on the issue.
Option A is wrong as it is uncertain whether the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day. On the narrow interpretation of s 4(2)(b) they have not, but on the broad interpretation (which this option adopts) they have. It is not yet known, though, whether the broad interpretation is correct.
Option B is wrong as, if UK courts do adopt a broad interpretation of s 4(2)(b), the rights granted by the directive will become retained EU law.
Option D is wrong, even if a broad interpretation of s 4(2)(b) is adopted. It is not the directive that becomes retained EU law, but rather the directly effective rights granted by the directive.
Option E is wrong for the same reason as option D, even though (unlike option D) it summarises the ambiguity in s 4(2)(b) correctly. As stated above, it is not the directive that becomes retained EU law, but rather the directly effective rights granted by the directive.
