Right to take up and pursue an occupation in another MS

Question 1

When to apply occupation provisions?

Answer 1

Follow the same 1-6 stages as free movement of citizens, but should apply this specific framework once a worker or self employed person is identified in stage 2.

Question 2

Provision: Free movement of workers and their family members

Answer 2

Art 45 TFEU

Question 3

Dassonville

Answer 3

Free movement of workers and their FMs: Art 45

Principle of market access applies, which includes non-discriminatory restrictions.

Question 4

Walrave and Koch

Answer 4

Free movement of workers and their FMs: Art 45

Art 45 is horizontally directly effective
Could be relied upon against a private cycling authority

Question 5

Trojani

Answer 5

Scope of art 45: Who is a worker?

Real and genuine activities
Relationship of subordination
Provision of services in return for remuneration

Question 6

Levin

Answer 6

Scope of art 45: Who is a worker?

Part time worker can be real and genuine

Question 7

Bernini

Answer 7

Scope of art 45: Who is a worker?

Short duration of employment does not, of itself, exclude that employment from the scope of art 45

Question 8

Bettray

Answer 8

Scope of art 45: Who is a worker?

Worker must be part of the normal labour market:
Main purpose of the work must not be a means of rehabilitation or reintegration e.g after prison

Question 9

Raccanelli

Answer 9

Scope of art 45: Who is a worker?

It is for the national court to decide if a person is a worker under art 45:
Trojani factors must be determined objectively
Should examine the substance of the contractual documents and arrangements

Question 10

Hartmann (Who is a worker)

Answer 10

Scope of art 45: Who is a worker?

Frontier workers (Someone who lives in one MS but works in another) exercise right of free movement to work, this was enough to engage art 45 without the exercise of the free movement of residence.

Question 11

ITC

Answer 11

Scope of art 45: Who is a worker?

Private sector employment agencies:
Private recruitment agency paid by german state to recruit workers, with requirement that jobs could only be offered to those who made compulsory social security contributions in Germany.
CJEU held that as recruitment agencies indirectly facilitated the hiring of workers, they represent workers, and therefore come within the scope of Art 45
Therefore the requirement was a restriction as it was likely to place individuals from other MSs at a disadvantage

Question 12

Justifications: Direct discrimination

Answer 12

Can only be justified on the basis of Art 45(3) TFEU: Public health, public policy, public security. Must be proportionate

Question 13

Justifictions: Non-discriminatory restrictions

Answer 13

Can be justified by Art 45(3), ORPIs. Must be proportionate

Question 14

Bernard

Answer 14

Justifying Non-discriminatory restrictions

Non discriminatory rule requiring young football players to be signed to the club that trained them
Held that restriction could be justified by an ORPI: Social importance of sporting activities and encouraging the recruitment of young players

Question 15

Groener

Answer 15

Justifying Non-discriminatory restrictions

Language requirement for teachers in Ireland to have good working knowledge of the Irish language
Was held to be justifiable and proportionate as the measures were to protect a minority language that was under threat

Question 16

Angonese

Answer 16

Justifying Non-discriminatory restrictions

Requirement of a certificate of competence to prove that a worker was bilingual was held to be disproportionate

Question 17

Provision: EUC workers shall enjoy the same social and tax advantages as national workers

Answer 17

Art 7(2) Free movement of workers regulation 492/2011

Only applies to workers NOT self employed

Question 18

Cristini

Answer 18

EUC workers shall enjoy the same social and tax advantages as national workers

Includes benefits that are not directly linked to employment, or are granted to the dependants of the worker

Question 19

Hartmann (Social and tax advantages)

Answer 19

EUC workers shall enjoy the same social and tax advantages as national workers

Frontier worker residing in Austria working in Germany
Held that his non-working wife was entitled to a german child raising allowance
Constituted a social advantage as it allows one parent to devote themselves to raising a child while still meeting family expenses

Question 20

Provision: Rights of family members of workers

Answer 20

Art 24 CRD

Question 21

Provision: Children of the migrant worker have a right to access the general education system of the host MS

Answer 21

Art 10 FMWR

Question 22

Baumbast

Answer 22

Art 10 FMWR: Children of the migrant worker have a right to access the general education system of the host MS

Applies even if the migrant worker no longer resides in the MS.
Therefore grants an independent right of residence to child in order to access the education system

Question 23

Texiera, Ibrahim

Answer 23

Art 10 FMWR: Children of the migrant worker have a right to access the general education system of the host MS

Right of residence extends to child’s primary carer, regardless of nationality
Art 12(3) CRD: therefore right of child and carer with not be affected by death or departure of worker

There is no age limit to rights conferred by art 10

No self-sufficiency condition when exercising rights under Art 10

Question 24

Provision: Right of freedom of movement of workers shall not apply to employment in the public service

Answer 24

Art 45(4) TFEU

Question 25

Commission v Belgium

Answer 25

Art 45(4) TFEU: Right of freedom of movement of workers shall not apply to employment in the public service

Only refers to those posts that actually safeguard the essential interests of the host MS
Exclusion should be justified in relation to each job

Question 26

Provision: Freedom of establishment (the right to take up and pursue activities as self-employed persons)

Answer 26

Art 49 TFEU

Question 27

Factortame

Answer 27

Art 49 TFEU: Freedom of Establishment

Defines establishment as: ‘The actual pursuit of an economic activity through a fixed establishment in another MS of an indefinite period’

Question 28

Jany

Answer 28

Art 49 TFEU: Freedom of Establishment

‘Economic activity’ in the factor tame definition of establishment involves satisfying a request by the beneficiary in return for consideration

Question 29

Sodemare

Answer 29

Art 49 TFEU: Freedom of Establishment

Presence and activity in another MS must be stable and continuous

Question 30

Reyners

Answer 30

Art 49 TFEU: Freedom of Establishment

Is directly effective

Question 31

Vassolopulou

Answer 31

Freedom of establishment:
Recognition of qualifications obtained in another MS where there is no legislative harmonisation

When considering whether or not to admit an EUC to a profession which depends on a qualification, the MS must take into consideration the diplomas, certificates and other evidence of qualifications which the person has acquired in order to exercise the same profession in another MS

Question 32

Heylens

Answer 32

Freedom of establishment:
Recognition of qualifications obtained in another MS where there is no legislative harmonisation

1. MSs are entitled to regulate the qualifications necessary to pursue a particular occupation
2. Must have a procedure which
   - enables the national authorities to assure themselves,
   - on an objective basis,
   - that the foreign qualification certifies that its holder has knowledge and qualifications
   - which are at least equivalent to those certified by the national diploma
3. Assessment of equivalence must have regard the nature and duration of studies, and any practical training guaranteed by the diploma

Question 33

Directive on the recognition of professional qualifications

Answer 33

Directive 2005/36/EC

Question 34

Legal basis for legislative harmonisation relating to qualifications

Answer 34

Art 53(1) TFEU

Purpose is to speed up freedom of establishment in professions that are regulated, and where qualifications are obtained in another MS

Adaptation/ aptitude test can be required if host MS can show that there are substantial differences in the methods of training
But must be automatic recognition for doctors, nurses, dental practitioners, vets, midwives, pharmacists, architects

Language requirements may be imposed if the MS can show that they are necessary for practicing the profession

Question 35

Situations not covered by the directive on the recognition of professional qualifications

Answer 35

1. Where profession is not regulated in the host MS (Art 3(1) provides definition of ‘regulation’)
2. Qualifications that have been obtained outside the EU (see art 3(3))

Question 36

Hocsman

Answer 36

Freedom of establishment:
Art 3(3) Qualifications directive: Qualifications that have been obtained outside the EU where holder has 3 years professional experience in an MS

In assessment of this MS must:

1. take into consideration ALL diplomas etc person has,
2. and relevant experience
3. by comparing the specialised knowledge and abilities certified by those diplomas and experience with the knowledge and qualifications specified by national rules

Question 37

Gebhard

Answer 37

Freedom of establishment:

ORPIs can be used to justify restrictions as long as measures are proportionate, and they are not discriminatory

However harmonisation legislation has removed much of the scope for such justifications in relation to recognition of qualifications beyond the conditions imposed in the directives and in respect of the permitted restrictions in arts 51-52 TFEU (pubic policy, public security, public health)

Question 38

Provisions: Recognition of formal qualifications obtained outside EU where its holder has 3 years professional experience in an MS which recognises those qualifications

Answer 38

Art 3(3) Directive 2005/36/EC on recognition of professional qualifications