Free movement of Persons Flashcards

Question

C-456/12 O & B | free movement - derive rights ## Footnote AG Sharpston urges the CJEU: ‘to take the opportunity afforded by these two references to give clear and structured guidance as to the circumstances in which the third country national family member of an EU citizen who is residing in his home Member State but who is exercising his rights of free movement can claim a derived right of residence in the home Member State under EU law.’

Answer 1

CJEU holds that Directive 2004/38 does not establish a residence right for third-country family members of an EU citizen in his home Member State. The Court infers this from both the wording of the Directive (which refers to ‘another Member State’) and the aim of the Directive (‘facilitating and strengthening the right to move and reside’). However, the Court considers that, in the circumstances of Case C-456/12, residence rights may be derived from Article 21(1) TFEU. The reason is that an EU citizen could be discouraged from moving to another Member State if he could not, on return to his home Member State, continue the family life he established in the host Member State. (cf.Singh and Eind) which concerned obstacles to the free movement of workers. (para 51) Article 21(1) TFEU can only be relied on ‘where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State’. EU citizen must have lawfully resided in the host Member State for more than three months (in accordance with Article 7 of Directive 2004/38). Shorter periods of residence by the EU citizen in the host Member State (in accordance with Article 6 of Directive 2004/38) do not establish residence rights for his family members. ## Footnote The Netherlands nationals in Case C-456/12 had in the past resided in another Member State;he question arose whether their family members (third-country nationals) could derive a right of residence in the Netherlands from Directive 2004/38 and Article 21(1) TFEU.

Answer 2

## Footnote see also Lounes ( rights derived from article 21(1)) as exercised Treaty Rights by moving to and residing in a host member state (other than that of which s/he is a national) has then acquired the nationality of the host member state while retaining his/her nationality of origin; and several years later marries a third-country national with whom s/he resides in that member state the third country-national is eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by the Free Movement Directive.

Answer 3

Periods spent in prison do not count towards the five year period to gain the right of permanent residence

Answer 4

University fees fall within the scope of Article 18(1) TFEU = they have to be equal for every UE citizen. Participates to integration especially for EU youth. ## Footnote However, according to Directive 2004/38, Member States are not obliged to provide maintenance grants and student loans to persons other than workers, the self-employed, and their families (Article 24(2)). T

Answer 5

Benefits intended to facilitate access to the labour market are social advantages. They must therefore be available to migrant job seekers BUT Member States may impose conditions: Member States may justify a residence requirement ( paras 38-39): ‘38 It is … legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State 39 The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question’ = interprets strictly Article 24(2) which states that the host Member State ‘shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b)’ ## Footnote : The applicants were both Greek nationals who entered Germany in order to work. Both had been granted a social benefit from the relevant authority (ARGE), and both had their entitlement suspended after it had been granted

Answer 6

Held: He did not fall in any of the categories of worker defined in Article 7 of Directive 2004/38 *Member States are entitled to condition the entitlement of migrants to social benefits on their fulfilling domestic requirements for lawful residence. *However, those requirements must comply with EU law. *The requirement imposed by Austria for lawful residence was that the migrant must, as soon as the initial unconditional three-month period of residence provided in Article 6 of Directive 2004/38 has expired, have sufficient resources so as not to apply for a specific social benefit. *The CJEU held that, while eligibility for a particular social assistance benefit could provide an indication that an individual may lack sufficient resources, the mere fact that a national receives that social benefit is insufficient in itself to prove that he constitutes such a burden. ## Footnote German national receiving an invalidity pension in Germany moved with his wife to Austria where he was refused a special noncontributory benefit, a form of social assistance, on the ground that his pension was too low and therefore he did not have minimum financial resources to establish lawful residence.

Answer 7

access to jobs that pertain to the exercise of powers conferred by public law, and entail duties designed to safeguard the general interests of the State may be restricted = posts that require 'a specific bond of allegiance and mutuality of rights and duties between state and employee.'

Answer 8

The ECJ: held that there is free movement => The Court of Justice held that Art. 18(1) EC (now Art. 20(1) TFEU) and Directive 90/364/EEC conferred on Catherine—an EU citizen covered by medical insurance and cared for by her mother, a third-country national with sufficient resources to ensure that her daughter would not become a financial burden on the state—a directly effective right to movement and residence under Community law. The same provisions consequently conferred on Mrs Chen, as Catherine’s primary carer, the right to reside with Catherine in the UK. the beneficiary(baby) has Irish nationality. You don’t need to be aware of your rights to exercise them + For the purposes of the Directive, the resources did not have to be possessed by the minor EU citizen, but could be provided by a family member. 25 By virtue of Article 17(1) EC [Article 20(1) TFEU], every person holding the nationality of a Member State is a citizen of the Union. Union citizenship is destined to be the fundamental status of nationals of the Member States (see, in particular, Baumbast and R, paragraph 82). 26 As regards the right to reside in the territory of the Member States provided for in Article 18(1) EC [Article 21(1) TFEU], it must be observed that that right is granted directly to every citizen of the Union by a clear and precise provision of the Treaty. Purely as a national of a Member State, and therefore as a citizen of the Union, Catherine is entitled to rely on Article 18(1) EC [Article 21(1) TFEU] ## Footnote goes to Ireland to give birth to avoid the One-child policy in China. The children automatically gets the Irish nationality. Wants to bring the child to UK. The British authorities claim that you cannot exercise free movement if you are not aware of it

Answer 9

= So long as an EU citizen is lawfully resident in the host State, she is entitled to equal treatment with Member State nationals in relation to benefits that fall within the scope of the EU Treaties even if she was not economically active. This right was derived from Articles 18 and 20 TFEU ## Footnote = Spanish national resident in Germany was employed there and was subsequently in receipt of social assistance. The issue was whether she was eligible for a child raising allowance.

Answer 10

The Court left the national court to decide whether that work was real and genuine, by ascertaining whether the services performed were part of the ‘normal labour market’. This could involve consideration of the status and practices of the hostel, the content of the reintegration programme and the nature and detail of the work. as long as a person is lawfully resident in the host State under itThe Court left the national court to decide whether that work was real and genuine, by ascertaining whether the services performed were part of the ‘normal labour market’. This could involve consideration of the status and practices of the hostel, the content of the reintegration programme and the nature and detail of the work. ## Footnote Mr Trojani, a French national, resided in Belgium at a variety of camp sites and a youth hostel before being given room and board by the Salvation Army in one of their hostels—in exchange for doing a variety of odd jobs for 30 hours a week, which also resulted in him being given some pocket money. Mr Trojani applied for a Belgian ‘minimum subsistence’ allowance on the grounds that he in theory owed the Salvation Army 400 euros a month for his room and board. The Belgian authorities rejected his application, arguing that he was not a ‘worker’ under EU law, and thus not entitled to the benefit—or indeed toresde here.

Answer 11

The Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law. Before deciding whether to withdraw its nationality granted by naturalization a Member State must assess whether withdrawal is compatible with EU law since it will result in the loss of Union citizenship ## Footnote Austria national obtained German nationality by naturalization as a result of which he lost his nationality of origin. German authorities sought to revoke his new nationality on the ground that it had been obtained by deception.

Answer 12

= Article 20 precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status *This may give rise to a derived right of residence of a third country national who is the primary carer of an EU citizen => Art. 20 TFEU should be interpreted as meaning that where a third-country national has dependent children who are EU citizens and who reside in their Member State of nationality, that Member State cannot require the third-country national to obtain a work permit or deny them a right of residence NB: The right of the third country primary carer is purely derived from the right of the EU citizen minor. It is not an autonomous right ## Footnote Couple Colombian citizens fled the civil war and seeks asylum in Belgium. Meanwhile, the mother gives birth to a child. If you don’t give the residence permit => they will need to leave the EU

Answer 13

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. ## Footnote Third country nationals who were married to, or children of, Austrian citizens applied for residence permits to live in Austria with their family members.

Answer 14

ECJ = in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of the third-country carer, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine. ## Footnote What if the carer is convicted of a criminal offence? Under the Zambrano formula she should have a right under the Zambrano formula.

Answer 15

*He could have a derived right of residence: in relation to his daughter (with Polish nationality) from Article 21 TFEU and the citizenship directive (since there is a cross-border element) = Free movement in relation to his son from Zambrano (since there is no cross-border element) = Zambrano rights arising from citizenship However, criminal record could defeat the above derived right ## Footnote The right of the third country primary carer is purely derived from the right of the EU citizen minor. Colombian national, sole carer of his two children, a daughter having Polish nationality and a son having Spanish nationality, refused residence permit in Spain on grounds of his criminal record.

Answer 16

= the assessment of an exception to a derived right of residence flowing from Article 20 TFEU must take account of the right to respect for private and family life, as laid down in Article 7 of the Charter = the obligation imposed on a Union citizen to have sufficient resources for him or herself and his or her family member who is a third-country national, is such as to ‘constitute an impairment of the effective enjoyment of the essential rights deriving from the status of Union citizen which would be disproportionate in relation to the objective pursued by such a means test, namely to preserve the public finances of the Member State concerned’ and undermine the effectiveness of Article 20 TFEU if it results in that citizen having to leave the territory of the European Union as a whole and, by reason of the existence of a relationship of dependency between that national and the Union citizen, the latter is, in fact, obliged to accompany him or her and, consequently, also to leave the territory of the European Union. ## Footnote Moroccan national family member of Spanish citizen refused residence permit in Spain on the ground that the Spanish spouse did not have, for him or herself and his or her spouse, sufficient resources not to become a burden on the national social assistance system

Answer 17

*Key criterion for the Zambrano test: whether there exists a relationship of dependency between the third country national and the EU citizen who is a family member such that, if no residence is granted to the third country national, the Union citizen will be compelled ‘in practice’ to leave the territory of the Union as a whole *as part of assessing whether the EU child is dependent on the third-country national parent, the competent authorities must take account of the right to respect for family life under Article 7 of the Charter which must be read in conjunction with the obligation to take into consideration the best interests of the child as recognised in Article 24(2) of the Charter ## Footnote concerned a number of cases where a third country national sought social assistance and child benefit as the carer of a Dutch child. None of them had a valid residence permit, however no deportation measures were taken against any of them. The children had received their nationality through their fathers. Thus, in all cases, the minor had a TCN mother and an EU citizen father. Seven out of the eight minor EU citizens had never made use of their EU free movement rights, i.e. had never left the Netherlands. Children benefits and social assistance applications were denied.

Answer 18

''a refusal to grant a right of residence to a TCN can undermine the effectiveness of the Union citizen if there exists a relationship of dependency between the TCN and the Union citizen of such a nature that it would lead to the Union citizen being compelled to leave the territory of the EU.'' => Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a TCN solely on the basis of an existing entry ban against TCN + must be assessed on case-by-case basis * For adults, derived rights of residence are only conceivable in exceptional cases, where any form of separation of the TCN and the member of his family on whom he or she is dependent is not possible. * As to children, the following criteria must be taken into account: The age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the EU citizen parent and to the TCN parent, and the risks which the separation from the letter might entail for the child’s equilibrium. Economic reasons are generally not sufficient. ## Footnote seven third country nationals (TCN) residing in Belgium were all ordered to leave and banned from entering Belgium, some on grounds of a threat to public policy. Thereafter, the TCN filed applications for a residence permit in Belgium, based on their family relations with a Belgian citizen (some argued they were dependent descendants of a Belgian citizen, others were parent of a minor child in Belgium or a lawfully cohabiting partner in a stable relationship with a Belgian citizen). The competent Belgian authorities refused to examine their applications for family reunification based on the existing entry bans. Under Belgian law, an entry ban in force cannot be extinguished or suspended unless an application for its withdrawal or suspension is lodged from outside Belgium. It is also noteworthy that the Belgian citizens with whom the TCN claimed to have family relations have never exercised their right to freedom of movement and establishment

Answer 19

*Held: EU law does not preclude the loss of the nationality of a Member State and, consequently, that of citizenship of the Union where the genuine link between the person concerned and that Member State is durably interrupted. ‘The loss of the nationality of a Member State by operation of law would be inconsistent with the principle of proportionality if the relevant national rules did not permit at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law.’ (para 41) ## Footnote *Under Dutch Law an adult loses nationality if he or she is a national of another country and has had his or her principal residence outside the European Union for an uninterrupted period of 10 years.

Answer 20

Assistance, whether in the form of subsidised loans or of grants, provided to students lawfully resident in the host Member State to cover their maintenance costs falls within the scope of application of the Treaty for the purposes of the prohibition of discrimination laid down in the first paragraph of Article 12 EC. That provision must be interpreted as precluding national legislation which grants students the right to such assistance only if they are settled in the host Member State. ## Footnote Danny Bidar, was French, and lived with his grandmother in the UK from August 1998, with his mother, who had cancer and died. He attended the local secondary school, and began uni in September 2001. He received assistance with tuition fees (following Gravier v City of Liège), but his application for a student loan was refused on the ground that he did not have ‘settled’ status

Answer 21

Requirement that nationals of other states must reside in state in order to be appointed a manager constitutes discrimination based on nationality under TFEU 45. Here the law applies without regard to the nationality of the person to be appointed as manager. Court says that national rules under with a distinction is drawn on basis of residence are liable to operate to the detriment of nationals of other member states.-Court says the residence requirement would be okay if based on objective criteria independent of nationality of employees, and proportionate to a legitimate aim pursued by national law. ## Footnote Austrian Trade Code requires legal entities to have manager resident in Austria. -P applied to be registered, application was rejected b/c manager was a resident of Berlin at the time, although he was seeking to live in Austria.

Answer 22

Held: Controversial ruling : national law in not only the only requirement, citizenshi directive is also important *NB: AG Wathelet advised that Ms Dano should not be entitled to social assistance. 131. ‘It serves to prevent persons exercising their right to free movement without intending to integrate themselves from becoming a burden on the social assistance system... In other words, it serves to prevent abuse and a certain form of ‘benefit tourism’.’* The Court of Justice ruled that Ms Dano, as an economically inactive EU citizen without sufficient resources to support herself, failed to fulfil the requirements set out in Art. 7(1)(b) of Directive 2004/38/EC for legal residence. As such, she could not invoke non-discrimination under the Treaties, was not entitled to equal treatment with nationals of the host Member State, and the German authorities could lawfully deny her non-contributory benefits ## Footnote Ms Dano and her son were both Romanian nationals living in Germany. In July 2011, Ms Dano had obtained a residence certificate for EU nationals from the local authorities, which was of unlimited duration and stated 27 June 2011 as her date of entry to Germany. Ms Dano and her son were living with, and supported by, Ms Dano’s sister, in Leipzig. The German authorities paid Ms Dano certain monthly benefits (child benefit and an advance on maintenance payments for her son). Ms Dano had not worked in Germany and was not seeking work. In September 2011 and January 2012, Ms Dano made two unsuccessful applications for benefits. Her objections to the latter decision were dismissed. In July 2012, Ms Dano and her son brought proceedings against Jobcenter Leipzig, challenging its latter decision refusing to grant the pair benefits available under German law—

Answer 23

those who are actively seeking work do not have the full status of a worker, but are nonetheless covered by Article 45. Instantiates the ECJ’s purposive approach. ## Footnote Antonissen migrated to the UK to find work but did not do so successfully after three years He was caught for dealing drugs and was subject to a deportation order He argued that deportation would breach his right to free movement under Article 45 TFEU (then Article 48 EEC Treaty) Under a UK provision, a person would no longer be a ‘worker’ within the meaning of Article 45 TFEU if he has failed to find employment six months after entry

Answer 24

THe taking into consideration, as a criterion for the grant of a separation allowance, of the fact that a worker has his residence in the territory of another member state may, according to the circumstances, constitute discrimination forbidden by article 7 ( 1 ) and ( 4 ) of regulation no 1612/68 . this is not the case however if the scheme relating to such an allowance takes account of objective differences in the situations of workers according to whether their residence at the time when they take up employment is within the territory of the state concerned or abroad .

Answer 25

the negative tax consequences for an individual who moved from one Member State to another to work did not breach Article 45, even if it might deter the worker from exercising rights of free movement, as it did not place that individual under any greater disadvantage than those already resident and subject to the same tax’

Answer 26

In assessing the proportionality of the penalty, the national court must take account of a range of factors, including the nature and seriousness of the offence, the length of residence in the host state, the time that had elapsed since the offences were committed, and the offender’s family circumstances. Proper regard must be had to fundamental rights, specifically to the right to family life guaranteed by Article 8 of the European Convention on Human Rights. ## Footnote Orfanopoulos, a Greek national, was living in Germany where he had worked intermittently. He was convicted of drugs offences and sentenced to a term of imprisonment, followed by deportation.

Answer 27

mutual recognition of diplomas ## Footnote this principles also applies to uni entry requirements / admission requirements : Commission v Austria.

Answer 28

it was disproportionate and in breach f free movement provisions. ## Footnote legislation requiring invoices to be in the language of the member state

Answer 29

Baumbast had sufficient means and adequate sickness insurance. He had a continued right of residence in the UK, arising by direct application of [Article 21 TFEU]. ## Footnote A German national living in the UK challenged the refusal to renew his residence permit on the ground that he was no longer economically active in the UK.

Free movement of Persons Flashcards

(53 cards)