Free Movement of Persons - Workers

Question 1

Lawrie-Blum

Answer 1

Lawrie-Blum was a trainee teacher; German courts held that a trainee teacher was not a worker under EU law; ECJ held that it did qualify as work
RATIO: A worker is a person who satisfies the 3 criteria

Question 2

Ex p Antonissen

Answer 2

The applicant was a Belgian national who had entered UK; he sought, but did not find work; convicted of drug offences and the Secretary of State decided to initiate deportation proceedings against him; held he was protected under the category of worker
RATIO: A person seeking work also comes within the scope of Art 45 TFEU and will be considered a worker.

Question 3

Levin

Answer 3

State argued that Levin was not a worker because her employment did not provide sufficient means for support and was below the minimum wage in the Netherlands.
RATIO: A part time worker is a worker provided the work is ‘effective and genuine’ and not ‘on such a small scale as to be regarded as purely marginal and ancillary’

Question 4

Kempf

Answer 4

German national was a part time music teacher who supplemented his income with State benefits
RATIO: A part time worker is a worker even if he is supplementing his income by other lawful means, including public funds

Question 5

Steymann

Answer 5

German national was a member of a religious community in the Netherlands, which provided for the material needs of members; in return he carried out various activities, like plumbing.
RATIO: An unpaid worker for a religious community can be a worker if he is contributing towards the community’s economic activities

Question 6

Bettray

Answer 6

A drug addict was undertaking therapeutic work as part of rehabilitation; under the program patients received payment and were treated, as far as possible, as ordinary employees so as to reintegrate them
RATIO: an individual will not qualify as a worker where the purpose of the work being carried out is to the benefit of him, not to carry out an economic activity.

Question 7

Micheletti

Answer 7

Micheletti was a dual national of Italy and Argentina and wanted to live in Spain; Spain did not recognize his Italian nationality as Argentina was his last country of residence; ECJ ruled Italian law was decisive.
RATIO: A person is a national of a state if he or she qualifies as such under national law.

Question 8

R v Saunders

Answer 8

British national pleaded guilty to theft and accepted order from English court to return to Northern Ireland and not come to England or Wales within 3 years; she returned to England to work so was prosecuted for breach of the order; challenged the order under Art 45 EU law.
RATIO: ECJ held it was a wholly domestic situation fell outside scope of Art 45. Article 45 does not apply to an internal situation, only to migrant workers going from one Member State to another. (Note: ECJ increasingly willing to find a Union element even if not immediately obvious e.g Surinder Singh case)

Question 9

Jia v Migrationsverket

Answer 9

Dependency = material support to meet essential needs.

Question 10

Surinder Singh

Answer 10

In Singh, a British woman returned to the UK with her Indian husband after working in Germany, they later separated and UK authorities argued he had no right to remain in the UK as he was no longer the spouse of a migrant worker. Banger concerned the right od residence in the UK of the South African long-term girlfriend of a British man following the couple’s return to the UK from working in the Netherlands.
RATIO: Singh – Migrant workers returning home should be allowed to bring their non-national spouses home with them
. principle only applies where the Union citizen has previously activated his or her rights of free movement by moving to another MS. Not apply if returning from outside the EU

Question 11

Banger

Answer 11

Held Surinder Singh also applies to other family members and partner as set out in Article 3(2). where the couple are unmarried, there is no automatic right of residence, but the member state must undertake an extensive examination of the personal circumstances of the third country national and justify any refusal of entry or residence
Must facilitate entry and residence for non-eu national partner with whom the EU citizen has a durable relationship

Question 12

O and B

Answer 12

ECJ gave guidance on when Union citizen can rely on Surinder Singh to bring family members with them
EU citizen’s residence in host state had to be ‘Sufficiently genuine so as to enable that citizen to create or strengthen family life in that state’. Those who lived in host state for 3 months did not intend to settle there. If 3 months or more then demonstrate genuine residence and so could bring their family members back to their home state.

Question 13

Netherlands v Reed

Answer 13

Reed went to Netherlands to cohabit with a worker; ‘term spouse’ held to refer only to marital relationships; Netherlands attempted to block her move, however as Netherlands confers the same rights to individuals in such a relationship as to married couples, they could not discriminate on basis of nationality.

Question 14

Ex p Sandhu

Answer 14

Indian national married a German and they were living in England; when marriage broke down, his wife returned to Germany with their son and he was informed that his right to remain in the UK ended upon his wife’s return; HL ruled this was correct
RATIO: Once the migrant worker having the primary right of residence has left the UK, the spouse no longer has a secondary right to stay there. (Exception is where the individual has custody of children who are minors and who are EU nationals).

Question 15

Diatta v Land Berlin

Answer 15

Mrs Diatta was a Senegalese woman married to a French man; they lived together in Germany where he was working but later left him and moved into a separate accommodation with intention to divorce; authorities argued she was no longer a spouse as she no longer lived with husband and had lost her right to live in Germany; ECJ held she retained her right to live in Germany
RATIO: There is no need for spouses to live together; as long as a couple is still married, the non-EU spouse will retain the right to reside int eh country even if they are separated

Question 16

Groener v Minister for Education

Answer 16

Dutch woman refused a job in an Irish college because she failed a test in the Irish language
RAITO: Language tests can be imposed, for example to protect national culture; however, these must apply to all applicants and must be proportionate.

Question 17

Cristini v SNCF

Answer 17

SCFR provided fare reduction cards for large families of employees who were French nationals; argued that Article 7(2) of the regulation only covered advantages relating to a worker’s contract or employment and so did not include fare reduction cards; held that fare reduction cards were a social advantage and this could not be interpreted restrictively
RAITO: non-nationals have the right to the same social and tax advantages as national workers.
‘social advantages’ include all social and tax advantages, whether attached to the contract of employment or not.

Question 18

Royer

Answer 18

Defendant’s had previous convictions and had been prosecuted for armed robberies in France but without ever being convicted; went to join his wife in Belgium, but failed to comply with administrative formalities upon entry.
RATIO: Expulsion is disproportionate in cases of non-compliance with administrative formalities.

Question 19

Commission v France

Answer 19

French Maritime Code required French merchant ships to employ a ratio of three French crew to one non-French crew hired; amounted to direct discrimination.
RATIO: A measure which treats non-nationals different from national will amount to direct discrimination; this can include regulations as to the ratio of nationals to non-nationals.

Question 20

Van Duyn v Home Office

Answer 20

Van Duyn, Dutch national was refused leave to enter UK to work for Church of scientology because gov considered the group’s activity to be socially harmful. Challenged. ECJ made clear that current association with a group or body could constitute ‘personal conduct’ and that the activities of the group or body do not necessarily have to be illegal for a MS to deny entry to or expel its members.

Question 21

R v Bouchereau

Answer 21

Bouchereau was a French national working in the UK and convicted for the second time within six months for unlawful possession of drugs; magistrate wanted to deport him; held to be disproportionate
RAITO: Past convictions are only relevant in so far as the person constitutes a present threat; this will be the case if the past conviction shows a propensity to reoffend, but past conduct alone is not enough. The must be a genuine and sufficiently serious threat to the fundamental interest of society.

Question 22

Adoui and Cornuaille v Belgian State

Answer 22

Belgian authorities refused residence permits to two French nationals who were working as prostitutes; Belgian law did not prohibit prostitution, but soliciting was illegal.
RATIO: A member State cannot refuse residence to a non-national where the Member State does not adopt against its own nationals acting in the same manner ‘repressive measures or other genuine measures intended to combat such conduct’

Question 23

Commission v Belgium

Answer 23

Various posts on Belgian railways were restricted, as well as other posts such as nurses, plumbers, electricians etc working with the City of Brussels; Belgian government argued they were in the public service exception; ECJ held they were not.
RATIO: The state cannot seek to remove a wide range of jobs from the protection of Article 45 simply by defining them as a public service. Public service must be related to the exercise of powers conferred by public law and safeguarding the general interests of the state (no examples but likely to cover judicial appointments, senior civil service posts & appointment of police officers).

Question 24

Allue

Answer 24

Italian law provided that teachers of foreign languages enter into fixed one-year contracts, while other teachers could have indefinite contracts; held to be indirectly discriminatory as it was much more likely for foreigners to be teaching foreign languages than Italian nationals.
RATIO: while a law which applies to everyone is not directly discriminatory, it will be indirectly discriminatory if it is more likely to affect foreigners over nationals.

Question 25

Bosman

Answer 25

Belgian footballer, wanted to leave his Belgian club to move to a French club. Argued that various UEFA rules effectively prevented this movement. One of these rules was indistinctly applicable, the rule that when a footballer moved from one club to another at the end of his contract, a transfer fee was payable. Applied to all footballers, irrespective of nationality, moving between clubs anywhere in Europe – whether within one MS or between MS. However, the ECJ held that such a rule could potentially inhibit free movement of footballers between MS and thus breach Art. 45 TFEU.

Question 26

Carpenter

Answer 26

A Filipino national who had overstayed her tourist visa married Mr Carpenter, a British national who ran a business selling advertising space in journals. A lot of this business was in other Member States. The British authorities wanted to deport Mrs Carpenter. Mr Carpenter argued this infringed his rights under what is now Article 56 TFEU. (principle would equally apply to Art 45). Directive 73/148 (now Directive 2004/38) allowed spouse of self-employed migrant right to accompany migrant to another MS. ECJ helf directive did not apply as it did not cover service provider in his state of origin.
However, deporting breach right Art 8 for family life - disproportionate interference with right to family life. Directive wouldn’t apply but fundamental rights reasoning would be applicable - may assist a person’s attempt to fight exclusion or deportation

Question 27

Baumbast and another

Answer 27

German national had initially arrived in the UK as a self-employed person, although subsequently he became an employee. He then ceased working. He had sufficient financial resources but no sickness insurance in respect of emergency treatment as required by provision that is now Art. 7(1)(b) Directive 2004/38. argued lost right to reside in UK as no longer had rights under Art. 45 or 49 nor satisfy conditions of residence in Directive. held whilst didnt have sickness insurance did have sufficient funds therefore disproportionate to deport him despite not fulfilling all conditions as he was not an unreasonable burden on host states resources.
RATIO: ECJ ruled Article 21 was directly effective and national authorities had to appy any limiteations and conditions in the Treaty or Directive in compliance with the principle of proportionality.

Question 28

Grzelczyk

Answer 28

Grzelczyk was a French national in the fourth year of a course at a university in Belgium. His right to study in Belgium was based on Directive 93/96; equivalent provisions now appear in Directive 2004/38. He applied for a minimex, a minimum subsistence allowance payable to all Belgian nationals resident in Belgium who did not have adequate financial resources. Belgian law had extended the right to a minimex to workers from other Member States, but not to students. Indeed, Directive 93/96 expressly provided that students from other Member States were not entitled to maintenance grants. Not surprisingly, the Belgian authorities rejected his application. The ECJ ruled that this was unlawful. Grzelczyk was lawfully resident in Belgium, and as he was a Union citizen, it was discrimination contrary to Article 18 TFEU to deny him the minimex. Although Directive 93/96 excluded any entitlement to maintenance grants, there was no provision in the Directive precluding students from obtaining social security benefits.
However, Grzelczyk faced another problem. Directive 93/96 gave students the right to free movement only if they had ‘sufficient resources to avoid becoming a burden on the social assistance system of the host Member State’. The ECJ acknowledged that Grzelczyk might no longer have satisfied the conditions for residence contained in the Directive, but considered that deportation would have been a disproportionate response by the Belgian authorities.

Question 29

Danny Bidar

Answer 29

French national. He lived in England with his grandmother, going to secondary school and then to university. He applied for a student loan. His application was rejected as he did not fulfil the criteria for the loan, that he be resident in the UK for the preceding three years; time spent in full-time education did not count towards calculating the three years residence, so he did not qualify.
The ECJ adopted a similar approach to that adopted in Grzelczyk and ruled that B was entitled to a student loan. He was a Union citizen lawfully resident in the UK and could not be discriminated against on a matter covered by the Treaty. The residence requirement was indirectly discriminatory; as such the UK authorities could seek to justify it on objective grounds. A residence requirement was legitimate in ensuring that an applicant for a student loan had a link with the host State, but excluding time spent in full-time education from calculating the period of residence was disproportionate. Thus B was entitled to a student loan, not as a student under Directive 2004/38, but as a Union citizen.

Question 30

Zhu and Chen

Answer 30

placed considerable reliance on Article 21 TFEU in making a ruling on residence rights. C, a Chinese national, gave birth to her daughter, Z, in Belfast. Under the law of the Republic of Ireland then in force, Z acquired Irish nationality. Both were currently resident in the UK, were covered by sickness insurance and had resources which made it unlikely that they would become a burden on the UK as host State. However, the UK turned down the mother’s request for a residence permit for her and her daughter on the grounds that neither qualified for such a permit under either UK or EU Law.
The ECJ ruled that as the daughter was a citizen of a Member State and therefore a citizen of the Union, she had, as a result of Article 21 TFEU and Directive 90/364 (now replaced by equivalent provisions in Directive 2004/38 covering residence rights for persons with sufficient resources), a right to reside for an indefinite period in a host Member State. The same provisions also allowed her mother, as her primary carer, the right to reside with her, regardless of the fact that the mother was not an EU citizen.