W5 - Free Movement of Persons Flashcards
Art 45
Guarantees free movement of workers; applies both horizontally and vertically (Bosman)
What is a ‘worker’?
Lawrie-Blum:
- Performs services for another person
- Under control of that other person
- Receives remuneration
Work must be ‘effective and genuine’, not ‘purely marginal and ancillary’ (Levin); and a ‘migrant’ worker (Saunders), even if dual citizenship (Micheletti) but depends on nationality as defined in each MS
Includes: part-time work (Levin) even if supplemented by teh state (Kempf); footballers (Bosman); Unpaid religious workers (Steymann)
Ind working as part of a drug rehabilitation programme was not a worker (Bettray) => worker should be somehow economically active
Family members
D2004/38 covers both EU nationals and their family members, defined as:
- Spouse (art 2(2)(a))
- Registered partner if recognised by MS (art 2(2)(b); Reed - spouse does not cover non-marital rels)
- Direct descendants under 21 or dependent direct descendants of any age (art 2(2)(c))
- Dependent direct relatives in the ascending line (art 2(2)(d))
- Other dependent family members (art 3(2)(a))
- Any partner with whom a Union citizen has a ‘durable rel’ (art 3(2)(b))
BUT art 3(2) not sufficiently precise to have direct effect (Rahman) so likely to have more rights under art 2(2)
Divorce/Separation
- No need to live at the same address as the worker if still married (Diatta)
- No right to remain when migrant worker left the country (Sandhu)
- Returning migrant workers should be allowed to bring their spouses home with them (Surinder Singh); extends to other family members (Banger)
- Residence in host state had to be ‘sufficiently genuine so as to enable that citizen to create or strengthen family life in that state’ - 3 months or more; can => bring family members back to their home state (O and B)
Art 13 D2004/38 - non-EU nationals can stay after the end of a marriage/registered partnership if:
- they had a minimum 3 year rel, incl a 1 year stay in the host MS (13(2)(a))
- partner has custody of the children (13(2)(b))
- circumstances warrant it eg victim of domestic violence (13(2)(c))
- court has ordered access to children f the relationship (13(2)(d))
Death/departure of union citizen
Art 12
- non-MS => must have resided in host state for 1 year before Union citizen’s death
- also applies to departure from host state by union citizen if they have custody of children who go to school there (until the completion of their studies)
Family members obtain their own right of permanent residence after they have lawfully resided in the host state for 5 years
Documentation
EU citizens in possession of a valid ID or passport (art 6(1)) and their non-EU family members accompanying or joining the EU citizen and in possession of a valid passport (art 6(2)) have a right of residence for up to 3 months, provided they do not become an unreasonable burden on the social assistance system of the host MS (art 14(1))
Job-seekers
Art 45 extended to include job-seekers BUT do not have the full range of rights - limited to entry and residence for the purpose of seeking work (Antonissen)
Cannot be deported if they are continuing to seek employment and have a genuine chance of getting it (art 14(4)(b) of D2004/28)
Certain rights extended to all EU citizens (art 21(1)) eg workers, self-employed, students and retired have no requirements to be economically active.
Right of residence over 3 months
- workers and self-employed (art 7(1)(a))
- citizens who have sufficient resources for themselves and their family members not to become a burden on the social assistance system of teh host MS and have comprehensive sickness insurance cover (art 7(1)(b))
- citizens who are enrolled at an accredited orivate or public educational establishment (art 7(1)(c))
- family members accompanying or joining an EU citizen who satisfied a/b/c (art 7(1)(d))
- non-EU family members who meet criteria in d (art 7(2))
Exclusion and deportation
Extended by D2004/38:
- may not be used for ‘economic ends’ (art 27(1))
- must be proportionate (art 27(2))
- must be based ‘exclusively on personal conduct of the ind concerned’ (art 27(2))
- may not be carried out on the grounds of prev criminal convictions in themselves (art 27(2)) => must be a threat to public policy/security/health (past convictions only relevant in so far as person constitutes a ‘present threat’ aka propensity to reoffend BUT in some circumstances past conduct may be enough if ‘genuine and sufficiently serious threat’ to ‘the fundamental interests of society’ - Bouchereau)
- public health => must be diseases with epidemic potential or the subject of protection provisions applying to nationals of the host MS (art 29(1))
- may have grounds to not be excluded on human rights grounds eg right to family life (Carpenter)
Equal Treatment
- right not to be discriminated against (art 45(2))
- supplemented by Regulation 492/2011
- both above have horizontal effect => can bring proceedings in the equiv of an employment tribunal
- right to equal treatment in D2004/38 BUT only vertical effect
R492 - specific rights precluding:
- quotas based on nationality (art 3 and 4)
- discriminatory medical, vocational or other criteria (art 6)
- discriminatory conditions or social and tax arrangements (art 7)
May be directly discriminatory (Commission v France); indirectly discriminatory (Allue); or non-discriminatory (Bosman)
Regulation 492/2011
Art 1 - gives an ind the right to take up employment in the territory of another state (art 1(2)- with the same priority as nationals of the host MS)
Art 3(1) - allows conditions ‘relating to linguistic knowledge required by reason of the nature of the post to be filled’ (Groener)
Art 6(1) - engagement and recruitment must not be subject to discriminatory tests or other criteria
Art 6(2) - taking of tests not discriminatory on grounds of nationality
Art 7(1) - right not to be discriminated against on grounds of nationality in relation to any conditions of employment (amplifies art 45(2)) - renumeration mentioned
Art 7(2) - guarantees migrant worker the same social and tax advantages as national workers => covers non-contractual entitlement (wide interpretation - Crinstini)
Art 7(3) - applies specifically to vocational training- given access to training in vocational schools and retraining centres
Equal Treatment D2004/38
Art 23 – family members of a union citizen with the right of residence in a host state have the right to take up employment or self-employment there, respective of nationality
Art 24(1) - equal treatment for migrant union citizens lawfully resident in a host state and for their family members
Equal treatment Regulation 883/2004
- gives EU migrant workers the same rights to social security benefits as nationals of the host state
- Any contributions made by the migrant worker (eg NI contributions in the UK) are taken into account in calculating any contribution-based benefits paid in the host state
Justifying distinctly applicable/directly discriminatory measures
Exclusion and deportation only justified under 45(3) as directly discriminatory by def; unequal treatment may be either distinctly or indistinctly applicable
Only possible through treaty exceptions (art 45(3)):
- Public policy (do not have to be illegal to be socially harmful - Van Duyn; must similarly apply to nationals - Adoui)
- Public security
- Public health
- Also public service exception (art 45(4) - exercise of powers conferred by public law, safeguarding general interests of the state - Commission v Belgium)
Justification of indistinctly applicable measures
Only possible in relation to equal treatment
- Treaty exceptions
- Cassis approach (necessary for a mandatory requirement of the state) - Bosman; Allue
