W5 Freedom of Movement

Question 1

Which article establishes the free movement of workers?

Answer 1

Art 45 TFEU

Question 2

Art 45 TFEU

Answer 2

Free Movement of Workers

Question 3

What does the freedom of movement for workers entail?

Answer 3

Right to move to any Member State to seek employment
Abolition of discrimination based on nationality between MS workers
Applies to employment, renumeration, and conditions of work

Question 4

What are the legislative justifications for non-compliance with Art 45?

Answer 4

Public Policy, Public Security, or Public Health

Question 5

What is the exception to Art 45?

Answer 5

Art 45 does not apply to public service employment

Question 6

What are the four parts of Art 45 TFEU?

Answer 6

1) Establishes freedom of movement for workers within the Union
2) Abolishes discrimination based on nationality
3) Lists rights and justifications
4) Exclusion: public service

Question 7

What is the definition of a “worker” for the purposes of Art 45?

Answer 7

A person who:
Performs a service
Under direction of another
In return for renumeration

Authority: Lawrie-Blum

Question 8

What is “employment in the public service” for the purposes of Art 45?

Answer 8

Very narrow definition, including:
Direct/indirect participation in exercise of public law powers
Function is to safeguard the general interests of the state
Requiring a special relationship of allegiance to the state

Authority: Lawrie-Blum

Question 9

Lawrie-Blum

Answer 9

Facts: British national was rejected from teacher training in Germany on grounds of nationality. Germany tried to use the public service exception. CoJ ruled that trainee teachers were workers, and that the public service exception did not apply.

Significance: Authority for definition of worker, and definition of scope of the public service exception

Question 10

Does free movement of workers extend to part-time workers?

Answer 10

Yes, provided the work is not on such a small scale as to be marginal or ancillary

Authority: Levin

Question 11

Levin

Answer 11

Facts: Levin was British, living and working part-time in NL. Her income was below the Dutch minimum subsistance level, but she was financially supported by her non-EU husband. CoJ held that, provided the part time work is effective and genuine economic activity, no marginal/ancillary, then Levin qualifies as a worker.

Significance: Authority for part time work

Question 12

What is included in the right to seek employment?

Answer 12

You can:
Enter the MS to seek employment
Remain for a “reasonable time” to look for work, train, etc
MS can define reasonable time, but must be minimum 3 months following the Citizen’s Rights Directive
At the end of the reasonable period, the MS cannot expel the foreign worker if they can prove they have the genuine chance of being employed

Authority: Antonissen

Question 13

Antonissen

Answer 13

Facts: Belgian national in the UK. He spent 2.5 years in UK jobseeking, and then was imprisoned for unlawful possession of cocaine and intent to supply. After release on parole, UK attempted to deport him and he appealed, saying he was looking for work. UK legislation at the time limited the jobseeking period to 6 months (which had exceeded). CoJ ruled that, in absence of EU legislation stating otherwise, 6 months was a reasonable period, however the UK could not expel him at the end of 6 months if he could provide evidence he was continuing to seek employment and had a genuine chance of being engaged.

Significance: Authority for right to remain in MS while seeking work

Question 14

Angonese

Answer 14

Facts: An Italian national was living in Austria, and while there applied for a job in Italy with a pre-requisite for bilingualism. The evidence for bilingualism was a certificate that could only be acquired from a local office. Found to be indirect discrimination under Art 45. While evidence of bilingualism was a justifiable requirement, only accepting that one type of evidence failed on proportionality.

Significance: Example of indirect discrimination and proportionality.

Question 15

Bosman

Answer 15

Facts: Football player with end of contract transfer fee. Found to disincentivize inter-club (and thus, inter-MS) movement.

Significance: Example of indirect discrimination under Art 45

Question 16

What is indirect discrimination under Art 45?

Answer 16

Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned

i.e. does it hinder access to the employment market?

Authority: Bosman (direct quote)

Question 17

Who has EU Citizenship?

Answer 17

Any citizen of a MS

Question 18

Which article establishes EU citizenship?

Answer 18

Art 20 TFEU

Question 19

What are the rights of EU citizens under Art 20 TFEU?

Answer 19

1) the right to move and reside freely within the territory of the Member States;
2) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
3) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
4) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

Question 20

Art 20 TFEU

Answer 20

Establishes the rights of EU citizens

Question 21

Tjebbes

Answer 21

Facts: Joint appeal from multiple applicants who held dual nationalities to the Dutch government, after passport applications were denied. In some cases, this would leave them stateless.

Significance: Each MS can set their own conditions for acquisition and loss of citizenship, but must be in pursuit of a legitimate aim and be proportionate. The MS must have due regard to the consequences of that loss in each specific situation for the person and their family members.

Question 22

Zambrano

Answer 22

Facts: Asylum seekers in Belgium originally from Colombia. Living there unlawfully. Couple – the man is working there illegally and paying taxes. Is discovered, want to deport him. Couple has children who were born in Belgium and are Belgian nationals/EU citizens. For EU law to be engaged, MS borders must be crossed in some way. Argued that deportation would interfere with the EU rights of the Belgian children. However, a MS border has not been crossed. Can EU rights be asserted by a third country national (father) who is a carer for an EU citizen? Court said yes. He was granted a residence permit. Legal source of his right is derived from the rights of his children.

Significance: Foreign parents can derive right to remain from their EU children under Art 20.

Question 23

McCarthy

Answer 23

Facts: British woman’s attempt to assert a Zambrano right in Britain (pre-Brexit) to bring her Jamaican husband to Britain, but Home Office rejects his visa application. She challenged it under Zambrano, Court said no, as the visa rejection doesn’t interfere with her rights as an EU citizen, she was not wholly dependent on her husband, nor does it compel her to leave the EU (as it would have for the children).

Significance: Zambrano rights require a relationship of dependence. Art 21/Directive 2004/38 were not engaged since she had always lived in the UK, so there was no cross border element.

Question 24

Dereci

Answer 24

Facts: Third country nationals who were married to, or children of, Austrian citizens applied for residence permits to live in Austria with their family members. The mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.

Significance: Arguing that the EU citizen’s right to family life is being infringed is a high hurdle.

Question 25

O, S & L

Answer 25

Facts: Third country mother with right of permanent residency and right to work in Finland. Has a baby with a Finnish man, baby is Finnish. Couple breaks up, mother marries another third country national living in Finland. This couple has a baby, baby not conferred automatic Finnish nationality, has third country nationality. Second husband is denied a residence permanent in Finland. Finnish baby is not genetically related to second husband. Second husband tries to argue a Zambrano right in relation to the Finnish baby. Does the Finnish deportation infringe the rights of the Finnish baby? Depends on whether there’s an emotional/legal/financial dependency between stepdad and Finnish baby? On the facts in this case, there was no dependency relationship, but court admitted it was possible in other circumstances.

Significance: An EU citizen can (hypothetically) have a dependent relationship giving rise to a Zambrano right with a parental figure with no biological connection.

Question 26

What is the test for a Zambrano right?

Answer 26

1) A relationship of dependency between third country national and EU citizen
2) Which would compel the EU citizen to accompany the third-country national to leave the EU

Question 27

CS

Answer 27

Facts: Third country mother in UK, married to British person, with British baby. Her residence permit expires, she challenges the deportation attempt by asserting a Zambrano right. But she commits a serious criminal offence. CoJ ruled a Zambrano right can be denied if proportionate and justified.

Significance: Zambrano right can be denied if the third country national presents a genuine, present, and sufficiently serious threat to the fundamental interests of the MS.

Question 28

Rendon Marin

Answer 28

Facts: Colombian national, sole carer of his children (Polish daughter and Spanish son), refused residence permit on grounds of criminal records. Note that since daughter was Polish, living in Spain, there was a cross-border element so she could rely on Art 21. CoJ ruled that residence permit could not be automatically denied because of criminal record, that due regard to the entire circumstances was required. In this case, since his sentence was suspended and not enforced, it’s unlikely that his conduct posed a sufficiently serious threat.

Significance: In contrast to CS, this is an example where the Zambrano right succeeded since the criminal record did not pose a sufficiently serious threat.

Question 29

Art 21 TFEU

Answer 29

Right for EU citizens to move and reside freely throughout the member states

Question 30

Does a Zambrano right require a cross-border element?

Answer 30

No, as long as there is an EU citizen dependent on a third party national

Question 31

Does asserting an Art 21 right require a cross-border element?

Answer 31

Yes, the EU citizen must have crossed an MS border

Question 32

RH

Answer 32

Facts: Moroccan national married to Spanish citizen refused residence permit on t he grounds that the Spanish spouse did not have sufficient resources to prevent a burden on the national social assistance system, even though her father had agreed to support the couple financially.

Significance: CoJ ruled that marriage wasn’t enough to create a relationship of dependency .

Question 33

Chavez-Vilchez

Answer 33

Facts: (Multiple applicants) Third country national sought social assistance and child benefit as mothers of Dutch children separated from Dutch fathers. Some applicants were in the country illegally, others legally but without the right to work. CoJ ruled that, based on Zambrano and Dereci, the mothers would only have derived rights of residence if they could provide evidence that without the right to remain, the child would be obliged to leave the MS. The father’s willingness and capability to look after the child is a relevant factor (but not the only factor).

Significance: If an EU child has an EU and non-EU parent claiming a derived right, the derived right is assessed holistically with regard to the best interest of the child and their relationship with both parents. Burden of proof on the derived right (i.e. that the child would have to leave the EU if non-EU parent deported) is on the non-EU parent, but court must adequately validate it.

Question 34

Article 7 European Charter of Human Rights

Answer 34

Right to family life

Question 35

What is the source of an EU citizen’s right to respect for family life?

Answer 35

Two answers: Art 20 TFEU or Art 7 European Charter of Human Rights

Question 36

Citizenship Directive 2004/38

Answer 36

Clarifies the rights under Art 20 and 21 and their limitations.
Allows EU citizens and their family members to stay in another MS for up to 3 months, provided they do not become an unreasonable financial burden on the MS.
Defines family member for the purposes of these rights (includes spouse, dependent children/step-children/direct relatives)

Question 37

Kempf

Answer 37

Facts: German living in NL, worked part time as a music teacher. Earnings were below national subsistence level, but supplemented by state benefits. His free movement rights were upheld.

Significance: Free movement rights cannot be infringed merely because the worker’s income falls below the minimum subsistence level and is supported by social assistance.

Question 38

Facts: British national was rejected from teacher training in Germany on grounds of nationality. Germany tried to use the public service exception. CoJ ruled that trainee teachers were workers, and that the public service exception did not apply.

Significance: Authority for definition of worker, and definition of scope of the public service exception

Answer 38

Lawrie-Blum

Question 39

Facts: Levin was British, living and working part-time in NL. Her income was below the Dutch minimum subsistance level, but she was financially supported by her non-EU husband. CoJ held that, provided the part time work is effective and genuine economic activity, no marginal/ancillary, then Levin qualifies as a worker.

Significance: Authority for part time work

Answer 39

Levin

Question 40

Facts: Belgian national in the UK. He spent 2.5 years in UK jobseeking, and then was imprisoned for unlawful possession of cocaine and intent to supply. After release on parole, UK attempted to deport him and he appealed, saying he was looking for work. UK legislation at the time limited the jobseeking period to 6 months (which had exceeded). CoJ ruled that, in absence of EU legislation stating otherwise, 6 months was a reasonable period, however the UK could not expel him at the end of 6 months if he could provide evidence he was continuing to seek employment and had a genuine chance of being engaged.

Significance: Authority for right to remain in MS while seeking work

Answer 40

Antonissen

Question 41

Facts: An Italian national was living in Austria, and while there applied for a job in Italy with a pre-requisite for bilingualism. The evidence for bilingualism was a certificate that could only be acquired from a local office. Found to be indirect discrimination under Art 45. While evidence of bilingualism was a justifiable requirement, only accepting that one type of evidence failed on proportionality.

Significance: Example of indirect discrimination and proportionality.

Answer 41

Angonese

Question 42

Facts: Football player with end of contract transfer fee. Found to disincentivize inter-club (and thus, inter-MS) movement.

Significance: Example of indirect discrimination under Art 45

Answer 42

Bosman

Question 43

Facts: Joint appeal from multiple applicants who held dual nationalities to the Dutch government, after passport applications were denied. In some cases, this would leave them stateless.

Significance: Each MS can set their own conditions for acquisition and loss of citizenship, but must be in pursuit of a legitimate aim and be proportionate. The MS must have due regard to the consequences of that loss in each specific situation for the person and their family members.

Answer 43

Tjebbes

Question 44

Facts: Asylum seekers in Belgium originally from Colombia. Living there unlawfully. Couple – the man is working there illegally and paying taxes. Is discovered, want to deport him. Couple has children who were born in Belgium and are Belgian nationals/EU citizens. For EU law to be engaged, MS borders must be crossed in some way. Argued that deportation would interfere with the EU rights of the Belgian children. However, a MS border has not been crossed. Can EU rights be asserted by a third country national (father) who is a carer for an EU citizen? Court said yes. He was granted a residence permit. Legal source of his right is derived from the rights of his children.

Significance: Foreign parents can derive right to remain from their EU children under Art 20.

Answer 44

Zambrano

Question 45

Facts: British woman’s attempt to assert a Zambrano right in Britain (pre-Brexit) to bring her Jamaican husband to Britain, but Home Office rejects his visa application. She challenged it under Zambrano, Court said no, as the visa rejection doesn’t interfere with her rights as an EU citizen, she was not wholly dependent on her husband, nor does it compel her to leave the EU (as it would have for the children).

Significance: Zambrano rights require a relationship of dependence. Art 21/Directive 2004/38 were not engaged since she had always lived in the UK, so there was no cross border element.

Answer 45

McCarthy

Question 46

Facts: Third country nationals who were married to, or children of, Austrian citizens applied for residence permits to live in Austria with their family members. The mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.

Significance: Arguing that the EU citizen’s right to family life is being infringed is a high hurdle.

Answer 46

Dereci

Question 47

Facts: Third country mother with right of permanent residency and right to work in Finland. Has a baby with a Finnish man, baby is Finnish. Couple breaks up, mother marries another third country national living in Finland. This couple has a baby, baby not conferred automatic Finnish nationality, has third country nationality. Second husband is denied a residence permanent in Finland. Finnish baby is not genetically related to second husband. Second husband tries to argue a Zambrano right in relation to the Finnish baby. Does the Finnish deportation infringe the rights of the Finnish baby? Depends on whether there’s an emotional/legal/financial dependency between stepdad and Finnish baby? On the facts in this case, there was no dependency relationship, but court admitted it was possible in other circumstances.

Significance: An EU citizen can (hypothetically) have a dependent relationship giving rise to a Zambrano right with a parental figure with no biological connection.

Answer 47

O, S & L

Question 48

Facts: Third country mother in UK, married to British person, with British baby. Her residence permit expires, she challenges the deportation attempt by asserting a Zambrano right. But she commits a serious criminal offence. CoJ ruled a Zambrano right can be denied if proportionate and justified.

Significance: Zambrano right can be denied if the third country national presents a genuine, present, and sufficiently serious threat to the fundamental interests of the MS.

Answer 48

CS

Question 49

Facts: Colombian national, sole carer of his children (Polish daughter and Spanish son), refused residence permit on grounds of criminal records. Note that since daughter was Polish, living in Spain, there was a cross-border element so she could rely on Art 21. CoJ ruled that residence permit could not be automatically denied because of criminal record, that due regard to the entire circumstances was required. In this case, since his sentence was suspended and not enforced, it’s unlikely that his conduct posed a sufficiently serious threat.

Significance: In contrast to CS, this is an example where the Zambrano right succeeded since the criminal record did not pose a sufficiently serious threat.

Answer 49

Rendon Marin

Question 50

Facts: Moroccan national married to Spanish citizen refused residence permit on t he grounds that the Spanish spouse did not have sufficient resources to prevent a burden on the national social assistance system, even though her father had agreed to support the couple financially.

Significance: CoJ ruled that marriage wasn’t enough to create a relationship of dependency .

Answer 50

RH

Question 51

Facts: (Multiple applicants) Third country national sought social assistance and child benefit as mothers of Dutch children separated from Dutch fathers. Some applicants were in the country illegally, others legally but without the right to work. CoJ ruled that, based on Zambrano and Dereci, the mothers would only have derived rights of residence if they could provide evidence that without the right to remain, the child would be obliged to leave the MS. The father’s willingness and capability to look after the child is a relevant factor (but not the only factor).

Significance: If an EU child has an EU and non-EU parent claiming a derived right, the derived right is assessed holistically with regard to the best interest of the child and their relationship with both parents. Burden of proof on the derived right (i.e. that the child would have to leave the EU if non-EU parent deported) is on the non-EU parent, but court must adequately validate it.

Answer 51

Chavez-Vilchez

Question 52

Facts: German living in NL, worked part time as a music teacher. Earnings were below national subsistence level, but supplemented by state benefits. His free movement rights were upheld.

Significance: Free movement rights cannot be infringed merely because the worker’s income falls below the minimum subsistence level and is supported by social assistance.

Answer 52

Kempf