FREE MOVEMENT OF PERSONS Flashcards
1
Q
WHO IS A CITIZEN
A
- eu citizen concept frost introduced in maastricht treaty
- art 20 TFEU citizenship of the Union is hereby established
- art 21 (1) TFEU every citizen shall have the right to move and reside freely in MS subject to conditions of treaty
- citizens are determined by there own MS no EU
- other MS cannot challenge decision of another state in this area c-369/90 and c-135/08
- EU citizen is not defined by EU law
- you can lose citizenship such as Rottmann
- Tjebbs found states can remove citizenship through administrative measures
- third country nationals that have relationships with citizens may also share those rights
2
Q
IMMEDIATE BENEFITS
A
- these are for citizens of the EU
- freedom of movement and residence
- right to vote and stand in e parliament and municipal elections
- right to diplomatic and consular protection
- right to petition E parliament
- right to refer to Ombudsman
3
Q
DIFFERENT CLASSES OF EU CITIZENS
A
- workers art 45
- self-employed art 49
- providers and recipients of services art 56
- students art 21
- retired persons art 21
- tourists 21 & 56
- economically self sufficient art 21
- and family members
4
Q
ENTRANCE AND RESIDENCE FORMALITIES
A
- can look too art 21 and 45 council directive 2004/38 and art 2.1
- restrictions for workers and families abolished
- entry documents required are valid ID card/passport c378/97
5
Q
FAMILY MEMBERS
A
- art 2 and 3
- spouses and same sex marriages have right c-637/16
- civil partnerships (registered partnerships) also have rights
- direct descendants under age 21 or dependants of spouse c423/12 found don’t have to be under 21
- dependant direct relatives in the ascending line and those of the spouse or partner are also entitled to residence
- additionally those who cannot prove these but also have dependant on relationship prior to residence may have right it must be demonstrated c129/18
- durable relationship such as gf boyf must be shown in court with evidence
6
Q
WORKERS AND OTHERS
A
- students in art 3 and also have sickness cover
- workers art 7.1 if you are a worker or self-employed or have sufficient resources for them self and family to not become burden on social assistance system of host MS and have sickness insurance cover in host MS
- can all be accompanied by family members
7
Q
THOSE WHO HAD RIGHT OF RESIDENCE BUT LOST IT
A
- death divorce annulment doesn’t mean loss of residence rights for registered spouse see arts 12 and 13 dir 2004/38 case 267/83 c-40/11 c218/14 Must prove durable residence
- in cases of divorce must be in host state for a year and married Atleast 3
- they can be separated but still married
- no longer have to obtain residence permit
- right to reside in not conditional penalty’s must be proportionate art 5.5 and Watson case
- right of permanent residence
- for more cases see slide
8
Q
RIGHT OF RESIDENCE IN OWN COUNTRY
A
- cannot have rights of residence in there own country
- reverse discrimination: cannot discriminate against citizens living in country but can discriminate again ur own as citizens are subject to own laws
- to activate principle of free movement there must be movement to another state cases Morson and jhanjan and uecker
- however compare to people who return to country such as Singh and carpenter
- which found it legitimate use of EU law
- can say this principle abused however intention does not matter
- can also work with people of dual nationality who has never moved see zhu and Chen
- see slides for more cases
9
Q
WORKERS
A
- art 45 finds workers should not be discriminated against on grounds of nationality Regarding employment and work
- limitations on grounds of security of public health
- but being an EU citizen you have
- right to offers of employment made and move freely with the territory of that MS
- right to remain in the MS for purposes of employment and to remain in the territory after being employed
- these provisions do not apply to employment in public service
10
Q
FREE MOVEMENT OF WORKERS
A
- market citizens protected by treaty and secondary legislation art 45
- is directly effective case 167/73
- is directly applicable in legal system of every MS
- also reg 492/2011 finds rights of workers and family members
11
Q
SCOPE OF ART 45 FOR WORKERS
A
- concept of worker is in EU law not national law case 75/63
- employee has three characteristics case 66/85
- they are providing a service
- under direction from another person
- in return for remuneration
Genuine and effect economic activity
- balance the rights of individuals to move freely and right of ms to determine what they view as economic activity
- look at slides for cases On what defines effective economic activity
12
Q
JOBSEEKERS
A
- can benefit from art 45 case 48/75
- but not forever case 292/89
- arts 14 and 24
- art 45 is rendered if you don’t allow people to move to seek work
- jobseeker don’t have all rights though see Lebon and other cases on slide
13
Q
WORKERS RIGHTS
A
- reg 492/2011 right to be joined by families and enjoy same conditions as host nationals 167/73
- art 7 regards equal treatment
- arts 2 & 3 dir 2004/38
- art 7(2) social and tax advantages. Rights of equal treatment to these advantages
- advantage not been defined in reg but in case law see slides for cases
- advantage must be connected to migrants worker status be of some direct and indirect benefit to worker and facilitate mobility in Eu
- limitations like in lebon and baldinger
- benefits for jobseekers Collins and in loannidis found they can have some benefits
14
Q
DISCRIMINATION
A
- reg 492/2011
- EU law does not create common rights rather place migrant worker in Same position as nationals
- both direct and indirect discrimination prohibited see slides for examples
15
Q
PUBLIC SERVICE EXCEPTION
A
- art 45 para 4 TFEU permits MS to deny or restrict access to work in public service on basis of nationality
- meaning of what constitutes public service defined by CJEU not MS case 152/73
- leading case that defines it is in 141/79
- post must involve exercise of powers conferred by public law and
- powers are designed safeguard general interests of state eg safety
