Free Movement (Major Cases, Legislation) – Mainly Goods and People Flashcards

Question

Expulsion = disproportionate sanction for failing to meet registration requirements

Answer 1

Royer [1976]

Answer 2

Article 2(2) > Spouse / contracted legal partner (if host state recognises) > Direct descendants of either – if under 21 or dependent > Dependent parent/grandparents of either

Answer 3

Article 12: Death or departure of Union citizen > Doesn't cause loss of residence rights for non-citizen if lived in host state as family 1+ year > Doesn't cause loss of residence rights for non-citizen children + parents with custody, for as long as children enrolled at educational establishment in host state Article 13: Divorce, annulment or termination of partnership – no loss of residence rights for non-citizen if: > Marriage/partnership lasted 3+ years, including 1+ year in host state, prior to initiation divorce/annulment/termination > Non-citizen has custody of citizen’s children > Non-citizen has right of access to minor child (providing court ruled such access must be in host state) > Caused by v difficult circumstances e.g domestic violence Article 17(4): Grants permanent residence to family where worker/self-employed person died before obtaining (subject to conditions)

Answer 4

Article 45 doesn't define, clarified by case law Performs services for another person, under the control of that person and receives remuneration > Includes jobseekers (NB: Directive 2004/38: unconditional 3 month residence + can't expel citizens who entered looking for work if can show still looking and have genuine chance of being engaged) > includes part time work as long as not on such small scale purely ancillary, and even if supplemented by other lawful means e.g. welfare > Must be genuine economic activity – paid in kind counts, therapeutic work programme doesn't

Answer 5

Diatta [1985]

Answer 6

Surinder Singh [1992]

Answer 7

Treaty exceptions (is indistinctly applicable by definition) – 3 general derogations: public health / public security / public policy Directive 2004/38 confirms grounds are treaty exceptions Further specifications: 1. Can't be used for economic ends 2. Must be proportionate 3. Must be based on individual conduct not personal characteristics 4. Can't be only on grounds of previous criminal convictions – to justify, must show is big enough ongoing threat to public policy, security or health 5. If on public health grounds only diseases either > "with epidemic potential" (defined by WHO) > "the subjection of protection provisions applying to nationals of host state" > Must be a right of appeal of review (usually right to use national court system to appeal against /judicially review decision)

Answer 8

Directive 2004/38 Article 28 ``` 1. Must take into account various factors: > Age > Health > Family > Economic situation > Social/cultural integration > Extent of links with home country ``` 2. Can't usually deport EU citizens/family with permanent residence – only serious grounds of public policy/public security 3. Even harder to deport EU citizen if lived in host state 10+ years / a minor – only imperative grounds of public security (Except if necessary for best interests of minor)

Answer 9

Van Duyn [1974]

Answer 10

Bouchereau [1977]

Answer 11

Adoui and Cornuaille [1982]

Answer 12

Carpenter [2002]

Answer 13

TFEU Article 20 | Relevant articles created by TEU – effective from 1993

Answer 14

TFEU Article 21 Has direct effect (confirmed Baumbast [2002]) “Subject to further rules” – not defined, assumed to mean similar derogations to other entry/residence rights

Answer 15

``` TFEU Article 22(1) – municipal elections Article 22(2) – European Parliament elections ```

Answer 16

Baumbast [2002] German came to UK self employed, then worker, then ceased working – sufficient resources but no health insurance ECJ: > Article 21 has direct effect – so must apply any limits/conditions in Treaty/Directives in line with proportionality > Deportation disproportionate for not having sickness insurance, had sufficient resources so unlikely to become burden

Answer 17

Zhu and Chen [2004] Chinese gave birth to daughter in Belfast, under ROI law at time daughter automatic Irish citizen – both UK resident, had sufficient resources + sickness insurance UK gov claim: neither qualifies for residence permits in UK or EU law ECJ: > daughter is EU citizen – under Article 21 + provisions in Directive 2004/38 precursor (persons with sufficient resources) has right to reside indefinitely > Also apply to non-citizen mum as primary caregiver Many see as significant development in use of Article 21 as: > Mother was deliberately setting out to use EU law to acquire rights was no barrier to application of relevant EU law > Article 21 confers important rights to Union citizens, can even extend to benefit non-citizens in some circumstances

Answer 18

Grzelczyk [2001] French student applied for Minimex in Belgium Bidar [2005] French student living with Grandma in UK, rejected for student loan on grounds time in full-time education didn't count as residence in UK for past few years In both: disproportionality is key

Answer 19

Eligibility for Employment Right to take available employment with same priority as nationals National laws/regulations/admin acts/practices don't apply: 1. If limit applications, offers of employment or right to take up and pursue employment – especially measures which: > Require special recruitment procedure for foreign workers > Limit/restrict ads of vacancies in press or other medium > Require registration with employment offices > Subject to conditions not applied to nationals (Exception = concerns linguistic skills needed for job) 2. EU citizens = nationals for purpose of > Rules on % of foreign workers in any undertaking/activity/region > Benefits granted to undertaking based on % national workers > Entitlement to same assistance from state employment offices 3. Recruitment shouldn't depend on discriminatory criteria – i.e. migrants shouldn't be subject to different medical/vocational/other criteria (NB: once have job offer, may have to do vocational test if employer expressly requests when making offer)

Answer 20

Employment and Equality of Treatment 1. Equal treatment to national workers, particularly concerning: > Remuneration > Dismissal > Reinstatement/re-employment if become unemployed 2. Same social and tax / training / housing advantages > Equal access to vocational schools and retraining centres > Same housing rights/benefits as national workers e.g. home ownership, put name on housing lists > Cristini [1975] fare reduction cards for large families come under "social and tax advantages" 4. Clause of individual/collective agreement is null + void insofar as lays down/authorises discriminatory conditions 5. Equality in trade union membership and attached rights > Right to vote for and be eligible for admin/management positions (EXCEPTION: may be excluded from management of bodies governed by public law / holding office governed by public law) > Eligible for workers' representative bodies NB: doesn't prevent states granting EU migrants more rights

Answer 21

Directive 2004/38

Answer 22

Covers social security rights: Basically gives EU migrant workers same rights as nationals Contributions by worker (e.g. National Insurance in UK) taken into account for contribution-based benefits

Answer 23

TFEU Treaty Exceptions Article 45(3): contains the 3 general derogations – courts interpret narrowly > Public policy > Public security > Public health ``` Article 45(4) Rights from Article 56 don't apply to "employment in public service" (No definition given, ECJ given narrow meaning: Commission v Belgium [1980] ``` To justify exception must always prove measure proportionate

Answer 24

Cassis de Dijon [1979] criteria apply 1. Necessary > Whether needed at all > If proportionate ``` 2. For mandatory requirement e.g. > Effective fiscal supervision > Protection of public health > Fairness of commercial transactions > Defence of consumer ``` Bosman [1995] confirmed Cassis applies to free movement of workers

Answer 25

Article 45[4] – Rights from Article 45 don't apply to "employment in public service" Commission v Belgium [1980] defined: > Only posts with “special relationship of allegiance to state” > Establishes test: a) “exercise of powers conferred by public law” b) “safeguarding the general interests of the state” (likely covers e.g. judges, police, senior civil servants)

Answer 26

Allue [1993] Law foreign language teachers on 1-year contracts, other subjects can sign indefinite contracts ECJ: ensuring sufficient funds to pay foreign language teaching assistants = legitimate aim, but disproportionate (dismissing surplus teachers = more proportionate)

Answer 27

Bosman [1995] Confirmed Cassis applies to workers ECJ: transfer fee = obstacle to free movement, can justify if “Pursuing legitimate aim compatible with Treaty” “Justified by pressing reasons of public interest” As long as “does not go beyond what’s necessary”

Answer 28

Article 45

Answer 29

Article 34

Answer 30

Article 49

Answer 31

Article 56

Answer 32

Article 57

Answer 33

1. Indirectly/directly discriminatory based on nationality or (if company) location registered office – in particular: > Nationality of provider, staff, shareholders, management, supervisory bodies > Requirement resident in territory 2. Restrictions on establishment in several EU states / choice where to have principal establishment + form of establishment 3. Obligation take out insurance from provider in host state

Answer 34

1. Quantitative/territorial restrictions on activity (distance, population) 2. Obligation provider takes a specific legal form 3. Requirements relating to shareholding 4. Qualifications provider (if not under Qualifications Directive) 5. Ban on multiple establishments in territory of same state 6. Min number employees 7. Min or max tariffs must comply with 8. Obligation supply other services jointly with service

Answer 35

Must be: > Non-discriminatory > Necessary for "overriding reason relating to the public interest" > Proportionate (Similar to Cassis) Reflect ECJ case law – additional duty that states send evaluation report to the Commission justifying requirements and intention to keep

Answer 36

Must be: > Non-discriminatory > Necessary for "overriding reason relating to the public interest" > Proportionate (Similar to Cassis) Additional conditions: > Must be based on transparent criteria which preclude arbitrary decisions by competent authorities > Can’t duplicate comparable requirements from other EU states > Authorisation for entire state territory for unlimited duration – unless state can objectively justify a limitation

Answer 37

Must be: > Non-discriminatory > Justified by reasons of public policy, public health, public security or protection of the environment > Proportionate (Beyond case law – distinctly applicable prohibited, indistinctly applicable can only be justified on general Treaty derogations + environment)

Answer 38

1. Doesn’t apply to: > Services of general economic interest (e.g. postal, utility) > Data processing > Shipment of waste 2. Derogation on safety grounds possible on case-by-case basis

Answer 39

1. Must set up establishment in host state 2. Must register with professional body in host state 3. Ban on setting up certain form/type of infrastructure (e.g. offices or chamber) needed to supply services in question 4. Contractual arrangements prevent/restrict by self-employed

Answer 40

National authorities must cooperate to ensure effective supervision When provider offers temp services: > General rule – home state responsible for supervising under national law (may ask host state to carry out checks/controls) > In limited cases where host state entitled to impose extra requirements – host state responsible for supervising them

Answer 41

> States have general duty examine + simplify admin procedures > Must set up ‘points of single contact’ for service providers from other EU states to find relevant rules/procedures/formalities > Must also ensure info available online + providers can complete any formalities electronically

Answer 42

Dorsch [1997] ECJ laid out relevant factors to consider – whether body 1. Established by law 2. Permanent 3. Has compulsory jurisdiction 4. Procedure is inter partes (i.e. has hearings where all parties can be present and heard) 5. Applies rules of law 6. Independent Not all factors necessary, sufficient most apply

Answer 43

CILFIT [1982] The CILFIT criteria Article 267 says court/tribunal must decide if decision on question of EU law is necessary to enable it to give a judgement – ECJ laid down guidelines on deciding if necessary NOT necessary if one of following applies: 1. Where the question of interpretation of EU law raised before the national court isn’t relevant to the conclusion of the case 2. Where previous decisions of the ECJ have already dealt with the point of EU law in question 3. Where the correct application of EU law is so obvious as to leave no room for reasonable doubt on the manner in which the question raised is to be resolved, and the court is convinced the matter is equally obvious to the courts of other Member States and to the the ECJ (assessed on the basis of characteristic features of EU Law and the particular difficulties to which its interpretation gives rise) NB: if the ECJ has already ruled on a similar point of interpretation in a previous case it doesn’t preclude a reference, but it could be reason for a court to decide it isn’t necessary (ECJ 2011 Information Note confirmed importance of CILFIT criteria)

Answer 44

Costa [1964]

Answer 45

Foto-frost [1987] Information Note 2011

Answer 46

Treaty Exceptions Article 51 Not covered by Article 49 + 56 as concerns "exercise of official authority" (construed narrowly – Reyners [2004] Belgian law only nationals can be lawyers = rejected) ``` Article 52 Contains the 3 general derogations: > Public security > Public health > Public policy e.g. Omega [2004] ``` To justify exception must always prove measure proportionate

Answer 47

Gebhard [1995] (Slightly different wording Cassis/Bosman) Can defend measures that actually hinder FoM on grounds: 1. Non-discriminatory (i.e. not directly discriminatory) 2. Justified by imperative requirements in the general interest > Suitable for securing objective they pursue > Doesn’t go beyond what’s necessary to obtain Case law – ECJ often rules objective legitimate but measure disproportionate

Answer 48

Gebhard [1995] German lawyer est. Milan office, tried to use Lawyers Services Directive (only covered providing services) ECJ ruled was established in Italy – test: 1. Pursuing activity on a “stable and continuous” vs “temporary” basis ``` 2. Four relevant factors: > duration > periodicity > continuity > regularity ``` NB: provider of services can equip with necessary infrastructure e.g. premises

Answer 49

1. Move to state to provide services 2. Move to state to provide services to nationals of home state 3. Don’t move, provide by internet etc. – e.g. Alpine Investments [1995] 4. Move state + wish to bring non-EU workers from home state – e.g. VanderElst [1994] 5. Nationals travel to other state and receive services there

Answer 50

1. Relating to exercise of official authority 2. Certain social security (social housing, Childcare, aid for persons in need) 3. Taxation 4. Temporary work agencies 5. Notaries and bailiffs 6. Private security 7. Gambling 8. Audiovisual services 9. Non-economic services of general interest Specific legislation: 10. Financial (e.g. banking, insurance) 11. Electronic communication 12. Healthcare Special treaty provisions: 13. Transport including ports (but covers some related e.g. removals, car rental, funeral services)

Answer 51

1. Doesn’t affect criminal or labour law 2. If conflicts with specific provision of EU law (e.g. Qualifications Directive) specific provision prevails 3. Must be element of service provision – manufacturing isn’t but many ancillary activities (e.g. retail, install/maintain, after sale services) covered

Answer 52

Only posts with “special relationship of allegiance to state" Test: 1. “exercise of powers conferred by public law” 2. “safeguarding the general interests of the state” (likely covers e.g. judges, police, senior civil servants)

Free Movement (Major Cases, Legislation) – Mainly Goods and People Flashcards

(76 cards)