Chapter 4

Question 1

What was the initial position of Free Movement

Answer 1

Only to the ‘economically active’
Treaty of Rome

Specific employment, social and educational rights were provided to workers by Regulation 1612/68 (now Regulation 492/2011).

Question 2

Article 20 of the TFEU,

Answer 2

Every person holding the nationality of a Member State is a citizen of the Union

Used to be Article 8 TEU

• Grants them the right to move and reside freely
• Subject to the limitations and conditions in the Treaties and secondary measures

Question 3

Directive 2004/38 - Citizenship Directive

Answer 3

Union Citizens + 2(1)
Family Members 2(2)

to move and reside freely within the territory of the Member States

• regardless of economically active
• no residence card
• perm right of residence

Question 4

What did Article 7A of the Single European Act 1986 do

Answer 4

• elimination of all border controls
  -opposition by the UK and Ireland.
• Separate agreement - Schengen Agreement
  abolished internal border controls amongst the signatory Member States and introduced common visa controls
  -Treaty of Amsterdam
  UK and Ireland still excluded

Question 5

What is Article 45

Answer 5

The Free Movement of Workers

1. Freedom of movement for workers shall be secured within the Union
2. Entail the abolition of any discrimination based on nationality
3. right, subject to limitations justified on public policy, public security or health
   - to accept offers
   - to move freely within the territory
   - stay in a MS for the purpose of employment
   - remain in territory of MS
4. doesn’t apply to employment in the public service

Question 6

What is the secondary legislation for Article 45

Answer 6

Regulation 492/2011
—- replaced with Regulation 1612/68

Directive 2004/38

Question 7

What is a worker?

Answer 7

Only applies to activities of an economic nature (Walgrave)

Lawrie-Blum criteria

a) perform services
b) for and under the direction of another
c) in return for remuneration

Must be genuine and effective economic activity - not ancillary 
Levin
Kemf
Steyman
Bettray
Trojani

Question 8

What happened in Walgrave?

Answer 8

• said sport constitutes an economic activity which has the character of gainful employment
• Dutch nationals who acted as professional pace makers in motor-paced cycle races

Question 9

What happened in Union Royal Belge?

Answer 9

• said professional football constitutes an economic activity which has the character of gainful employment

Question 10

What did Hoekstra say?

Answer 10

• the Court of Justice held that whether or not a person is a worker was not to be defined by national law but was to be given a Union meaning.

Question 11

What did Lawrie-Blum say?

Answer 11

Created the criteria

a) perform services
b) for and under the direction of another
c) in return for remuneration

• Brit trained in Germany to be a teacher
• Refused admission as she was not a German national
• Authorities denied that a trainee teacher is a worker
• fulfilled these 3

Question 12

What did Levin say?

Answer 12

Must be a genuine and effective economic activity

• Brit whose residence permit had been refused as said she was not in gainful employment
• she began working 20 hours a week as a chamber maid in a hotel
• irrelevant that supplementary means of subsistence was from the employment of a member of his family

Question 13

What did Kempf say?

Answer 13

a German music teacher who worked part time in the Netherlands from 1981 to 1982 during which time he was in receipt of social security benefits to top up his modest earnings
- Supplementing income by recourse to social security benefits is irrelevant

Question 14

What did Steymann say

Answer 14

• This concerned a German member of a religious community in the Netherlands who had applied for a residence permit there on the ground that he was pursuing an activity as an employed person.
• Did stuff for community and they provided for him
• Work carried out in connection with the community’s commercial activities could amount to a genuine and effective economic activity.

Question 15

What did Bettray say

Answer 15

• Drug addict employed under a legislative scheme designed to provide employment
• Not engaged in effective and genuine activity
• Any economic activity involved in the employment was purely ancillary to the primary social objectives.
  CONTROVERSIAL

Question 16

What did Trojani say?

Answer 16

• a French national who, as part of a personal socio-occupational reintegration programme in Belgium, was given accommodation in a Salvation Army hostel where he did various jobs for about 30 hours a week in return for board and lodging and some pocket money
• held to satisfy the Lawrie-Blum test
• the Grand Chamber left it to the Belgian court to determine whether or not on the facts the paid activity was an effective and genuine economic activity.

Question 17

What about Job Seekers?

Answer 17

They can also enter and reside in the territory of another MS to look for work (Royner)
developed in
R v Immigration Appeal Tribunal

Question 18

What happened in R v Immigration Appeal Tribunal Antonissen

Answer 18

• an order to deport a Belgian national from the United Kingdom.
• He had entered the United Kingdom seeking employment and had not secured work after the six-month period laid down in UK law.
• The Court of Justice confirmed that Article 45 entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purpose of seeking employment.
• It justified this on the basis that a strict interpretation of Article 45 would jeopardize the chances that a national of a Member State who is seeking employment would find employment in another Member State and would thereby undermine the objective of Article 45 itself.
• However, the Court qualified the right by accepting that it could be subjected to a temporal limitation.
  Reasonable time
  y, a Member State could require a national of another Member State to leave the territory of that State if he has not found employment there after six months unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged. This principle is now codified in Article 14(4)(b) of Directive 2004/38

Question 19

What did ‘Grzelczyk’ say

Answer 19

‘ ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.’

Landmark

Question 20

Can Workers bring anyone with them?

Answer 20

Yes,
Their family members
Initially
- Article 10(1) of Regulation 1612/68 provided a worker with a right to install his spouse and their descendants who are under the age of 21 years or are dependants and to install dependent relatives in the ascending line of the worker and his spouse.
- Article 10(2) of the Regulation placed the Member States under a further duty to facilitate the admission of any other member of the worker’s family who was dependent on the worker or living under his roof in the country he came from.

Question 21

What happened in Netherlands State v Reed

Answer 21

A British woman who was living with her British partner in the Netherlands was refused a residence permit.
- The Court of Justice held that the term ‘spouse’ in Article 10 was confined to a person who is married to the worker.
- Accordingly, an unmarried partner could not claim rights as a ‘spouse’ under the Regulation.
Reed could rely instead on - Article 7(2) of the Regulation which provides that a worker shall enjoy the same social and tax advantages as national workers
- Dutch law permitted a foreign national who was living together with a Dutch citizen in a stable relationship to reside in the Netherlands

Question 22

What does Article 2(2) of the Directive say? Directive 38 of 2004

Answer 22

It defines a family member in the following terms

a) a spouse
b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State,
c) the direct descendants who are under 21 or are dependants of spouse/partner
d) The dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)

Question 23

What does Coman v Inspectoratul General Pentru Imigrări say?

Answer 23

'spouse' is gender neutral
Article 2(2)(a)

Question 24

What does Article 3 say?

Answer 24

Defines beneficiaries
1. Other family members who are dependants or members of the household of the migrant worker or whose serious health problems require the personal care of such a person
(Jia - a ‘dependant’ as someone who needs the material support of the Union citizen in order to meet their essential needs in their State of origin or the State from which they have come at the time when they apply to join that Union citizen)

2. The partner with whom the Union citizen ‘has a durable relationship, duly attested’
   unmarried co-habiting partners, both heterosexual and homosexual, who are not registered and so fall outside Article 2(2).

Limited rights

Question 25

What rights do Union Members and family members have ?

Answer 25

Rights of entry and residence
= Directive 2004/38. The Directive applies to all Union citizens, including workers, and their family members.

rights of exit and entry
- passport (article 4 and 5)

right of residence
- up to 3 months (as long as not an unreasonable burden on social assistance system)
- over 3 months
subject to qualifications

Retention of Rights of Residence
Permanent Right of Residence

Question 26

Explain Right of Residence for UC and family members

Answer 26

Article 6(2)

up to 3 months
- Retain as long as they do not become an unreasonable burden on social assistance system

over 3 months
article 7 (1) -
a) workers or self-employed persons
b) Sufficient resources and sickness insurance
c)
i) are enrolled at a private or public establishment accredited
ii) have comprehensive sickness insurance cover
d) Are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points
(a), (b) or (c).

2. can extend to FM who are not nationals of a MS provided such Union citizen satisfies the conditions above

Question 27

Retention of Rights of Residence for UC and Family Members

Answer 27

> Job seekers (Article 14(4)(b))
cannot be expelled as long as seeking employment
Unemployed (Article 7(3)
retain when illness/accident, involuntarily unemployed + job seeker, voc traininh

FM
> Death or departure of the Union citizen
> Separation - as long as the marriage hasn’t dissolved
Diatta
> Divorce
Article 13(1) -
MS nationals - can acquire right of permanent residence after five years
(Diatta)

******
NON EU 
- 3 years long with 1 in the MS
- custody of the UC's children
- difficult circumstances 
- court ordered access to a minor in the host State

Permanent Residence Right
Art 16 
Legally raised for a period of 5 years
Lost through absence of 2 consec years
Art 17 - BEFORE 5 years
a) retired
b) permanent incapacity
c) resident in host MS but working in another

Question 28

What is the Public Service Exemption?

Answer 28

Article 45 4 of TFEU

‘a series of posts which involve direct or indirect participation in the
exercise of powers conferred by public law and duties designed to
safeguard the general interests of the state or of other public authorities.
Such posts in fact presume on the part of those occupying them the
existence of a special relationship of allegiance to the state and reciprocity
of rights and duties which form the foundation of the bond of nationality’

Not for employment in the public service
Sotgiu (not for MS to define this, but an EU meaning)
Defined in Commission v Belgium

Not exempt
- railway posts
Commission v Belgium
- nurses - C v France
- Trainee teachers - L-B

Exempted
Local authority posts - C v Belgium

Question 29

Where are the source of derogations for Free Movement?

Answer 29

Article 45 (3)

• Public policy
• Public security
• Public health

Article 27 1
Same grounds for UC and family members

Question 30

What does Article 27(2) say?

Answer 30

Rules governing the public policy derogation and the public security derogation are provided in Article 27(2)

Proportionality
Based exclusively on the personal conduct of the individual concerned.
Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

Question 31

What happened in Commission v Belgium (Public Employees)

Answer 31

The case concerned advertisements for several posts with two Belgian national railway companies and two Belgian local authorities which were reserved for Belgian nationals only.

 it was held that the posts of 
head technical office supervisor, 
principal supervisor, 
works supervisor, 
stock controller, 
night watchman and architect at
the local authorities did fall within the public service exemption. 

But all of advertised posts within Belgian national railway companies did not.

Question 32

Derogations: personal conduct of the individual

Answer 32

Van Duyn

A Dutch national who wanted to work as a secretary for the Church of Scientology.
Membership of the church was permitted in the UK but she was refused entry into the UK because British authorities considered the activities of the church socially harmful.
The Court of Justice declared that the public policy derogation had to be interpreted strictly.
Nevertheless, it held that an individual’s present association with an organisation could be considered personal conduct because it reflects participation in the activities of the organisation and identification with its aims
Could be socially harmful
Very heavily criticised

Question 33

Derogations: not arbitrary

Answer 33

Adoui and Cornaille
deport two French nationals on the grounds that they were prostitutes. Prostitution itself was not unlawful in Belgium, although certain associated activities were unlawful.
The Court of Justice held that it was arbitrary to rely on the derogation to expel or refuse admission to nationals of another Member State by reason of their conduct where its own nationals would not be subject to repressive measures intended to combat the same conduct.

Question 34

Derogations: Not to deter

Answer 34

Bonsignore v Oberstadtdirektor der Stadt Köln
an Italian worker resident in West Germany was convicted and fined for unlawful possession of a firearm and for negligently causing his brother’s death as a result of careless handling of the firearm.
The West German court had fined him for the former offence but had not imposed any punishment for the latter offence because he had been deeply affected by the death of his brother and had undertaken never to touch a gun again.
The chief administrator for the city in which he resided responded to the conviction by ordering his deportation. The purpose of the deportation was to deter other foreign nationals in West Germany from committing firearms offences.
It followed a substantial rise in offences involving the use of firearms and was in accordance with ministerial directions to West German immigration authorities that they should be especially strict with foreign nationals who had been found guilty of such offences. The Court of Justice emphasised that measures adopted on the grounds of public policy and public security could not be justified on the basis of factors extraneous to the individual case.
A deportation order may only be made for breaches of the peace and public security which might be committed by the individual affected. It could not be ordered for the purpose of deterring others.

Question 35

Derogations: genuine, present and sufficient serious threat affecting one of the fundamental interests of society

Answer 35

R v Bouchereau
The Court of Justice left it to the national court to determine whether or not that person did represent such a serious threat.

Concerning criminal convictions as ‘conduct’ under public policy ground for exclusion
-charged with drug poss

Question 36

Derogations: Past criminal convictions are not, in themselves, a ground for deportation

Answer 36

Bouchereau
- the Court of Justice interpreted this as meaning that the existence of a previous a criminal conviction can only be taken into account in so far as the circumstances which give rise to that conviction are evidence of personal conduct constituting a genuine, present and sufficient threat to the requirements of public policy affecting one of the fundamental interests of society. In general, the Court thought, evidence that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future. However, it accepted that it is possible that past conduct alone may constitute such a threat. In doing so, the Court ensured that a single conviction can provide a good ground for deportation in exceptional circumstances where it reveals the person concerned to be a present danger to society and so it is not necessary to show a tendency for him to offend again.

Question 37

Derogations: Must be compatible with fundamental HR

Answer 37

Rutili v Minister for the Interior
This concerned an Italian national who had lived in France since his birth and was employed there. Following complaints about his trade union activities, he had been prohibited from residing in the Lorraine region of France.
The Court concluded that a prohibition on residence which is justified on the ground of public policy derogation may be imposed only in respect of the whole of the national territory

Orfanopoulos v Land Baden-Württemberg
a Greek national who was a drug addict was being expelled from Germany after having been convicted several times for various offences. He had lived there since he was 13 and had married a German national with whom he had two children. The Court of Justice held that the right to respect for family life guaranteed by Article 8 of the ECHR had to be taken into account as he was being removed from a Member State where close members of his family are living
And proportionality !

Question 38

Derogations: not for economic ends

Answer 38

Article 27(1) of Directive 2004/38
Further safeguards are provided by Article 28:
‘1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on
serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) Have resided in the host Member State for the previous ten years; or
(b) Are a minor, except if the expulsion is necessary for the best interests of the child

Question 39

Derogations: Public Health

Answer 39

provided for in Article 29 of Directive 2004/38
‘1. The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State.
2. Diseases occurring after a three-month period from the date of arrival shall not constitute grounds for expulsion from the territory.
3. Where there are serious indications that it is necessary, Member States may, within three months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical
examination to certify that they are not suffering from any of the conditions referred to in paragraph 1 above. Such medical
examinations may not be required as a matter of routine.’