Free movement of persons

Question 1

Art 49 TFEU

Answer 1

Establishment: free movement of the self-employed and of companies
EU citizenship (added 1993) – Art 21(1) TFEU: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

Question 2

Art 18 TFEU:

Answer 2

“Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”

Question 3

Lawrie-Blum v Land Baden-Wurttemberg

Answer 3

Definition of ‘worker’ : an ‘employment relationship’

‘The essential feature of an employment relationship … is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.

Question 4

Levin v Staatssecretaris van Justitie

Answer 4

Definition of ‘worker’ : An ‘effective and genuine activity’

“any person who pursues employment activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary”

Question 5

Rights of EU workers - directive 2004/38

Answer 5

Article 4 - Exit

Article 5 – Entry

Article 6 - right of residence for up to 3 months….. see Article 14 ‘as long as they do not become an unreasonable burden on the social assistance system of the host Member State’

Rights of entry and residence Citizenship Directive 2004/38
Article 7 provides for a right of residence for more than 3 months:
• where the EU citizen is economically active (workers and self-employed) A 7(1) a
• Where the EU citizen is not economically active but they have ‘sufficient resources for themselves and their family members not to become a burden on the social assistance system’ A 7 (1) a
• Should the economically active persons find him/herself in involuntary unemployment A 7(3) sets out the conditions for maintaining the right of residence for more than 3 months

Question 6

Art 45 TFEU

Answer 6

1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

Question 7

Direct discrimination

Answer 7

on grounds of nationality: e.g. ‘Only British nationals can apply for this post’. EU worker is treated less favourably than the national worker.

Question 8

Indirect discrimination

Answer 8

focuses on effect of a measure; domestic laws operate a distinction between certain categories of workers, which is not nationality, but is “intrinsically liable” to affect migrant workers more than nationals.

Question 9

family members - Article 2(2) of Directive 2004/38:

Answer 9

a) a spouse;
b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation that the host Member State treats registered partnerships as equivalent to marriage (now 18 EU countries) and in accordance with the conditions laid down in the relevant legislation of the host member State.
c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b).
d) (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).

Question 10

Children of EU workers: Education
 - Article 10 Reg 492/11

Answer 10

provides that children of workers have the same right to general education, apprenticeship and vocational training courses as nationals of the Member State.

Question 11

Diatta v Land Berlin (Case 267/83) [1985] ECR 567

Answer 11

• A Senegalese national and her French spouse living and working in Germany had separated and initiated divorce proceedings. Did the non-EC spouse continue to enjoy the rights accorded to workers? The ECJ held that she had the right to continue to reside in Germany: the fact that they did not live under the same roof did not matter; there was a continuing family link.

Question 12

Divorce and separation: Third country Nationals
Article 13(2)

Answer 12

allows the retention of the right of residence by family members who are third country nationals in four circumstances.

Question 13

R (Secretary of State for the Home Department) v Immigration Appeal Tribunal and Surinder Singh [1992] 3 CMLR 358

Answer 13

• Mr Singh is an Indian citizen who worked with his British wife in Germany for several years. The couple then returned to the UK where he was allowed to reside with his wife on the basis of the UK immigration rules (limited leave to remain). The couple then divorced. The UK authorities decided to curtail his leave to remain and order his removal from the UK.
• In its ruling handed down on 7 July 1992 in case C-370/90, the EU Court of Justice ruled that Mr Singh had a right under EU law to reside in the UK on the basis that his wife had previously exercised her right to free movement by working in Germany.
• The Court explained that a European citizen might be deterred from leaving his country of origin in order to work in another EU country if, on returning to his home country, his spouse and children were not also permitted to enter and reside in the citizen’s country of origin under the same conditions that apply to an EU citizen going to live in an EU country other than his home country

Question 14

rights of entry and residency citizenship directive 2004/38

Answer 14

Article 4 - Exit

Article 5 – Entry

Article 6 - right of residence for up to 3 months….. see Article 14 ‘as long as they do not become an unreasonable burden on the social assistance system of the host Member State’

Rights of entry and residence Citizenship Directive 2004/38
Article 7 provides for a right of residence for more than 3 months:
• where the EU citizen is economically active (workers and self-employed) A 7(1) a
• Where the EU citizen is not economically active but they have ‘sufficient resources for themselves and their family members not to become a burden on the social assistance system’ A 7 (1) a
• Should the economically active persons find him/herself in involuntary unemployment A 7(3) sets out the conditions for maintaining the right of residence for more than 3 months

Question 15

‘Social and tax advantages’

Answer 15

• ‘Social advantages’ have been taken to include:
• Special fare reduction on railways to large families: Cristini (Fiorini) v SNCF (Case 32/75) [1975] ECR 1085.
• Interest-free childbirth loans: Reina v Landeskreditbank Baden-Württemberg (Case 65/81) [1982] ECR 33.
• Minimum income allowance: Hoeckx v Centre Public d’Aide Sociale de Kalmthout (Case 249/83) [1985] ECR 973.
• Use of minority language in court proceedings (no link to a contract of employment) Mutsch Case 137/84
• Residence of unmarried companion: Netherlands State v Reed (Case 59/85) [1985]
• Funeral expenses benefits: O’Flynn v Adjudication Officer (Case C-237/94) [1996] ECR I-2617.