EU - cycle 8 - Free movement of Persons

Justifications: Regulation 492/2011 Article 3

states that measures that limit the right to seek or pursue employment on EU migrant workers or which add conditions not applicable to nationals do not apply However Article 3(1) does allow MS to require 'linguistic knowledge required by reason of the nature of the post to be filled' but it has to be proportionate

Case 30/77, Bouchereau [1977] ECR 1999

A French national in the UK was convicted of possession of drugs in jan 1976 and then again in June. Tried to challenge a deportation order. Held that a likelihood of reoffending can be found from past conduct although previous criminal convictions are not grounds for doing so in themselves

Dereci: Crucial quote

1. 'the mere fact that it might appear desirable to a national of a MS, 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 MS 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.'

C-127/08 Metock

1. : 4 cases, in each a TCN had entered Ireland and lodged an asylum application which was refused. Before arrival to Ireland, each TCN married a national of another MS who was living and working in Ireland. All marriages were genuine marraiges, not marriages of convenience. After the marriage, the TCNs applied for a residence card, which the Irish Minister for Justice refused. This refusal in three of the 4 cases was solely based on the fact that each applicant wasn't in the a position to provide evidence that he had been lawfully resident in another MS prior to arrival in Ireland. The fourth case, a Nigerian national who married a Polish national, before the final decision refusing his application for political asylum, a deportation order had been made prior to his marriage. Therefore the Nigerian married when he was unlawfully residing in Ireland. He was arrested and deported. (1) Held that under the Directive 2004/38 a host MS is not allowed to require a TCN, who is the spouse of an EU citizen residing in that MS, to have previously been lawfully resident in another MS before arriving in the host MS. Held that no such requirement requirement is provided for in Directive 2004/38, and that Article 2 of Directive 2004/38 makes no distincition between those family members who have already resided lawfully in another MS prior to their arrival in a host MS and those who joined an EU citizen in a host MS without previously residing in any MS, or whose residence in a MS was unlawful prior to their arrival in a host MS. (2) ECJ confirmed that the EU has exclusive powers to regulate the entry of TCNs who are family members of an EU citizen into a MS in which that citizen has exercised his right of freedom of movement, including a situation where the family members had not previously been lawfully resident in another MS.(3) held that TCNs, who are spouses of EU citizens, benefit from the right to free movement irrespective of whether they have entered the hose MS before or after becoming spouses of EU citizens, and irrespedctive when and where their marriage may have taken place, and of how they entered the host MS. Obviously, in any event, under Art 27 of Directive 2004/38 a MS is allowed to penalize a TCN for, prior to becoming a spouse of an EU citizen, entering into and/ residing in its territory in breach of the national rules on immigration. However, any punishment must be in conformity with EU law in that it must be proportionate. ECJ made an important clarification regarding (2) bearing in mind that the Irish gov and other govs of MS, submitted that they retained exclusive competence to regulate the first access to EU territory of TCN family members of an EU citizen. They submitted that their exclusive competence in this area was justified by the necessity to control immigration at the external borders of the EU. ECJ rejected this submission. Court stated first that only TCNs who are family members of EU citizens benefit from the right of entry into, and residence in, a host MS and 2nd that a host MS retains its power to refuse entry and residence both to EU citizens and to non-EU family members on grounds of public policy, public security, or public health.

Case 66/85, Lawrie-Blum [1986] ECR 2121

1. A worker is a person who: 2. performs services of some economic value 3. Under the direction of another person 4. In return for remuneration

General principles applied by the court for exceptions to free movement of persons

1. Derogations are to be interpreted strictly 2. All national measures must be proportionate 3. CJEU has the jurisdiction to ensure that MSs use their discretion within the limits imposed by the Treaties

Market Access =

1. Does the rule substantially restrict access to the labour market or the freedom of movement? 2. If so, it is allowed only if the restriction is: a. Based on objective considerations b. Independent of nationality, and c. Proportionate to the aim legitimately pursued by the law

Where does the confusion lie when it comes to rights based on the Treaty?

1. Largely the right of EU citizens is pretty clear 2. There are few cases on it 3. The cases have largely revolved around if/ how EU citizen's rights can give rise to a right of residence/ work permit for a relation

Art 20 =

1. Requirement of nationality as a prerequisite of EU citizenship means that: a. Nationals of third countries b. Refugees c. Stateless persons That are legally residing in a Member State do not acquire any rights under Article 20

What benefits CAN'T a MS restrict?

1. Risks such as illness, invalidity, old age, unemployment etc.... 2. The mere fact they are a worker or residence... 3. Helping someone access the employment market...

C-456/02 Trojani

1. The court here used EU citizenship to say that because he is a union citizen, he can benefit from rules on non discrimination on grounds of nationality. a. If activities constitute merely rehabilitation or integration for the person concerned, this cannot be regarded as a real and genuine economic activity. The national court has to examine whether the services performed are regarded as forming part of the normal labour market b. If activities constitute merely rehabilitation or integration for the person concerned, this cannot be regarded as a real and genuine economic activity. The national court has to examine whether the services performed are regarded as forming part of the normal labour market

in Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze

1. What is social assistance? In general, social assistance benefits are regarded as those that are means-tested, i.e. depending on the actual needs of the claimant and not on previous contributions to the social security system through insurance or completion of a given period of employment. While social assistance tends to be needs-related, social security seeks to cover certain types of social risks, such as those relating to sickness, invalidity, old age, unemployment, and maternity/paternity. Social assistance is defined: in Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze: 'Benefits of a financial nature ... intended to facilitate access to the labour market cannot be regarded as constituting 'social assistance' within the meaning of Article 24(2) of Directive 2004/38.' all this is is a negative definition of one thing that does NOT constitute social assistance

2 elements that must be made out for public service position

1. post must involve the exercise of powers conferred by public law a. needs to have discretion and power of enforcement 2. the holder must be entrusted with responsibilities for the general interest of the MS

Case 41/74, van Duyn [1974] ECR 1137

: Duyn, a Dutch national, challenged the UK's refusal to allow her entry to work for the Church of Scientology, an organization considered to be 'socially harmful'. Duyn maintained that the public policy ground didn't apply, arguing that her association with the Church didn't constitute 'personal conduct'. CJEU held that present association with an organization, reflecting participation in its activities and identification with its aims, constitutes personal conduct. In general, past association would not justify restrictions.

Case 196/87 Steymann

Activity of an economic nature. A plumber working for a religious community who did not receive remuneration but worked for his upkeep and 'pocket money' was a worker.

Article 27(2) of Directive 2004/38

sets out that previous criminal convictions don't constitute a basis for excluding workers on the grounds of public policy or security per se

Crucial quote from Zambrano

Art 20 TFEU preclude national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union

What are the treaty articles and directives regarding EU citizenship?

Art. 20 Art. 21 Directive 2003/19 Directive 2003/89 Directive 2004/28

C-413/99 Baumbast

Article 21 has direct effect Mrs B (a Colombian national) married Mr B (a German national) in the UK where they decided to establish a family home with their 2 daughters - one who possessed Colombian national via a past marriage and the other who held dual German and Colombian nationality. British authority granted a residence permit to the family in 1990 valid for 5 years. Mr B worked in the UK before his business folded, and proceeded to work for Germn companies in China and Lesotho. Family did not receive any social benefits from the UK and was covered by comprehensive medical insurance in Germany. Mr. B applied for indefinite leave to remain in the UK, but the Secretary of State refused to renew the residence permit on the grounds that he was 'neither a worker nor a person entitled to reside in the UK'. HELD: Mr. B should not be refused a residence permit in the UK. To refuse him the right to reside in the UK on the ground that he had no emergency medical insurance in the UK would be disproportionate. Non-EU family member have no right to stay if the Union citizen leaves the host state, unless they can rely on Art 12(3) can stay until children's studies are completed

Case C-209/03, Bidar [2005] ECR I-2119

Bidar, a French national, had come to the UK with his mother (who died soon after their arrival), completed his secondary education and started a course at UCL. His student loan application was rejected on the ground that he was not settled in the UK. Held that the Treaty right in Art 18 granted equality with nationals regarding student grants and loans, though a MS would be justified in requiring a certain degree of integration into the state's society.

Case C158/07 Förster

CJEU found that a 5 yr residency condition imposed by the Dutch authorities was not excessive for the purposes of guaranteeing integration.

What is 'public service'?

Case 149/79 Commission v Belgium: Public service concern 'posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State'

Case C-138/02, Collins [2004] ECR I-2703

Collins, who had dual Irish and American nationality, had come to the UK to look for work. His application for JSA was refused on the grounds that he was not habitually resident in the UK and not a 'worker' under [EU] law. Held that the equality principle in Art 45(2) included a right to a financial benefit 'intended to facilitate access to employment in the labour market of a MS'

Types of obstacle to Free movement of Workers:

Discrimination Market Access

C-135/08 Rottman

ECJ was asked whether Article 20 TFEU allows a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation, when the nationality was obtained by deception. Result of the withdrawal would have been that the person concerned would become a stateless person. HELD: Because withdrawal of naturalisation would entail loss of EU citizenship and as a result the loss of important rights, such withdrawal WAS within the scope of the Treaties and could only be effected if the requirements of proportionality were satisfied

Case C-292/89, Antonissen [1991] ECR I-745

EU nationals are entitled to enter and remain in another MS to seek work

C-148/02 Garcia Avello

Effect of a national measure was that children had different surnames, one under Belgian law and one under Spanish law. According to Belgian law a child must only use the surname of the father. Situation was liable to difficulties in terms of documents and diplomas recognised in other MSs. A person has EU rights if they have always been resident in one MS but hold the nationality of another

Regulation 883/04: relates to social security

Enjoy the same benefits as nationals

Art. 45 TFEU

Freedom of movement for workers

Four essential elements to being a worker:

Genuine an effective activity Activity of an economic nature A relationship of subordination For remuneration

Regulation 492/2011

Governs access to and conditions of employment for workers

Groener v Minister for Education (Case 379//87)

Irish rules required lecturers in Irish vocational schools to be competent in the Irish language Although the teaching post at issue didn't entail the use of Irish in the classroom, the CJEU held that the requirement would be justified provided it formed part of national policy to promote the use of Irish as the first official language under the Irish constitution.

Case 139/85 Kempf

It does not matter if they are part-time, or if they receive pay at a lower rate than for full-time employment. Kempf, a German national living in the Netherlands, worked 12 hours per week as a music teacher. His earnings were below the minimum subsistence level but, he relied on welfare to supplement his income.

Art 46 TFEU

Particularly refers to measures: 1. Ensuring liberalisation of the movement of workers 2. Restricting free choice of employment by EU workers other than restrictions imposed on national workers 3. Ensuring close co-operation between national employment services 4. Ensuring the harmonious development of the EU employment market

Article 2(2) of Directive 2004/34

Provides definition of family members: spouse: Metock case Partner with whom the citizen has registered partnership (if the host MS treats it as equivalent to marriage) Direct descendants under the age of 21 who are dependent and those of the spouse/partner Direct dependent ascendants and those of the spouse/partner (i.e. parents, grandparents etc.)

Study Aid/Student finance (3 months -5yrs)

a. Article 24(2) states before completing a five year period of residence MSs are not obliged to grant maintenance aid for studies, to persons other than workers, self-employed persons, persons who retain such status and members of their families. b. This means the rights are attached to workers, not citizenship! The Court has stuck to this strictly and will not consider other non-time based factors (Case C158/07 Förster)

Directive 2003/89 =

Right to Family Reunification for any TCN 1. who "is holding a residence permit issued by a Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence" a. Such a person is entitled to be reunited with members of their nuclear family if they are also TCNs --> UK and Ireland not bound by this directive

Directive 2003/109 =

TCNs who are long term residents in the EU can be citizens when they: a. Have lawfully and continuously resided in the territory of the Member State concerned for a period of at least 5 years b. Are not a burden on that Member State's social assistance system c. Have appropriate medical insurance and; d. Represent no threat to its public policy, public security and public health --> UK and Ireland are not bound by this directive

What is meant by Sufficient resources of a student under Art 7(1)(b) under the directive 2004/38

a. Article 8(4) of the Directive states that in each case the situation of the person concerned should be assessed by the host MS b. The MS is not allowed to set a fixed amount c. In any case the amount should not be higher than the threshold below which nationals of the MS are eligible for social assistance i. (so if they have enough so that they would not be entitled to social assistance it is assumed they would not be a burden on the social assistance system)

For remuneration

a. Broad concept b. Salary includes: i. Cash ii. In kind benefits c. It does not matter if it is received directly or indirectly (e.g. via an agency)?

Directive 2004/38 in Art 14(4)(b)

The host MS shall not be obliged to confer entitlement to social assistance during the first 3 months of residence or, where appropriate, the longer period for provided for in this article

Art 29 of Directive 2004/38

The only diseases justifying restricting freedom of movement are those with epidemic potential

Case 36/74 Walrave and Koch

The rules of the Union Cycliste Internationale, an international sporting association which was neither a public body nor part of the State, imposed nationality requirements in respect of "pacemakers" and "stayers" in the world cycling championships. ECJ ruled that nationality requirement was contrary to Art TFEU. Stated that the prohibition of discrimination "does not only apply to the action of public authorities but extends likewise to rule of any nature aimed at regulating in a collective manner gainful employment and the provision of services.

How to define a 'worker'

There is no definition of 'worker' in the Treaties. It has an autonomous EU meaning. See cases Lawrie-Blum and Trojani

Scope of Directive 2004/38

This Directive, unlike matters that apply only to workers, apply to all EU citizens and their families

Directive 2014/54

This directive was created to support Reg 492/2011 after a number of problems with its efficacy were identified (e.g. non-compliance by various parties)

Regulation 883/04

This regulation coordinates social security systems within EEA and Switzerland

Case 34/09 Zambrano: Facts

a. Columbian parents lived in Belgium and were not ordered to leave the country due to the civil war in Columbia b. While staying in Belgium Mrs Zambrano gave birth to two children c. These children were granted Belgian nationality Mr Zambranno worked, but when it was found out he had no work permit he was dismissed and refused unemployment benefit

Case C-184/99, Grzelczyk [2001] ECR I-6193

Union citizenship is destined to be the fundamental status of the nationals of the MS'

Permanent residence in a MS?

a. Directive 2004/38 introduced the right of permanent residence b. EU nationals and members of their family are granted permanent residence when: i. There has been a 5 year period of uninterrupted legal residence ii. Provided there has been no expulsion decision

Residence longer than 5 years?

a. EU citizens who have resided lawfully in a MS for more than five years are then considered to be fully integrated into that MS b. Consequently they are entitled to all social benefits and all study finance normally available

Case C-281/98, Angonese [2000] ECR I-4139(freedom from discrimination

a requirement to hold a particular language qualification would be unlawful, unless it could be justified by factors unrelated to nationality and was proportionate

C-333/13 Dano

a woman who lived in Germany with her son. She had an unlimited residence permit, was provided for through state benefits, Had no employment. The decision to refuse her jobseekers allowance was upheld because she had been living there without any right under the Directive. She did not have sufficient resources to provide for herself or comprehensive medical insurance as required by Article 7(1)(b) of the Directive

Genuine and effective activity

a) If the activity is effective and genuine, that person is a worker b) It does not matter if they are part-time, or if they receive pay at a lower rate than for full-time employment (Case 139/85 Kempf)

Entitlement to financial benefits when residence is for less than 3 months

a. All EU citizens are entitled to equal treatment, but: i. When they stay for less than three months they are not entitled to 1. Social benefits 2. Study finance b. Unless the MS decides otherwise

The right of residence under the directive 2004/34: Up to 3 months

a. All EU citizens have the right to enter another MS on the basis of valid ID or passport b. A family member who is a TCN may be required to have a short-stay visa however possession of a valid family member residence card (Art 5(2) and 10) shall exempt such members from a visa requirement

Entitlement to benefits when residence is 3 months - 5yrs

a. If the stay is between three months and five years social assistance depends on many factors b. One of which is whether they are resident lawfully C-333/13 Dano

Case C-415/93 Bosman

a. International football organisation rules meant that even if a player was outside of their contract, a club looking to transfer them had to pay the club their existing club. The rules applied regardless of nationality or whether the transfer was to another club inside or outside the country. Bosman wanted to move from a Belgian club to a French club. His Belgian club refused to accept the transfer fee. The court decided that the rules constituted an obstacle to freedom of movement of workers and that They affected the ability to access work in other MS as well as being capable of impeding the freedom of movement and so could not be objectively justified.

McCarthy: What was held?

a. It was decided that she couldn't rely on either: i. Directive 2004/36 ii. Art 21 TFEU b. Directive 2004/28 didn't apply because she had never exercised her right of free movement, residing in the State of which she was a national (even if she had applied for and obtained an Irish passport) c. Art 21 TFEU didn't apply because her spouse not being in the UK 'in no way affects her in her right to move and reside freely within the territory of the MS, or any other right conferred on her by virtue of [her EU citizenship]

Case 34/09 Zambrano, what was held?

a. Minor children who are EU citizens would be deprived of the genuine enjoyment of the substance of their rights conferred as EU citizens if their parents had to leave the EU b. This is because if the parents left the children would have to leave c. It would not merely be unpleasant or inconvenient, but the children would have no real choice but to leave d. Similarly, if no work permit was granted this would have the same impact e. Accordingly, Mr Zambrano was both able to stay and work in Belgiun

Case C-256/11, Dereci [2011] ECR I-11315: Facts

a. Mr Dereci, a Turkish national, entered Austria illegally and married an Austrian national with whom he had three children who are also Austrian nationals and who are still minors. Mr Dereci currently resides with his family in Austria b. Mr Maduike, a Nigerian national, also entered Austria illegally and married an Austrian national with whom he currently resides in Austria. c. Mrs Heiml, a Sri Lankan national, married an Austrian national before entering Austria legally where she currently lives with her husband, despite the subsequent expiry of her residence permit. d. Mr Kokollari, entered Austria legally at the age of two with his parents who possessed Yugoslav nationality at the time, he was 29 years old and stated that he was maintained by his mother who is now an Austrian national. He currently resides in Austria. e. Mrs Stevic, a Serbian national, is 52 years old and has applied for family reunification with her father who has resided in Austria for many years and who obtained Austrian nationality in 2007. Mrs Stevic resided in Serbia with her husband and their three adult children. She regularly received monthly support from her father and she claims that he would continue to support her if she resided in Austria. f. All of the applicants had their applications for residence permits in Austria rejected.

Case C-434/09, McCarthy [2011] ECR I-3375: Facts

a. Mrs McCarthy was a dual British and Irish citizen. She was born and had always lived and worked in the UK b. She married a Third Country National (TCN) c. She tried to assert her EU citizenship (based on Irish nationality) to bring her spouse to the UK

Dereci: What was held?

a. Once again it was held that the Directive did not apply to these applicants because in each case it was an Austrian national applying for residence of a family member in Austria b. So they could not rely on the Directive (as in McCarthy) because they had not exercised their freedom of movement within the EU c. In each case Article 20 TFEU did not apply because the lack of residency did not prevent the EU citizen from enjoying the substance of their rights d. In other words even if residency was not granted all relevant EU citizens could stay in the EU e. (In Mr Kokollari's situation this suggests that a minor EU child will have to follow a TCN parent but not an EU parent their adult TCN child)

The right of residence under the directive 2004/34: 3 months to 5 years

a. The right of residence for periods exceeding 3 months is granted to 3 categories of person: i. Workers/self employed persons ii. Economically inactive persons and their families (Art 7(1)(b)) where they have sufficient resources not to be a burden on the social assistance system and have comprehensive sickness insurance cover in the host state iii. Students (Art 7(1)(b)) where they are: 1. Enrolled at an establishment accredited or financed by the host MS 2. Have sufficient resources to avoid becoming a burden on the social security system of the host MS 3. They must have comprehensive sickness insurance

Zambrano case: More detail

a. This Art (Art 20) didn't require a cross border element (the citizen did not need to move to another MS to activate their freedom of movement within the EU): The children were Belgium and living in Belgium b. This means there is a separate right, not based on the Directive c. Case was also significant because, in previous cases the children who were allowed to stay has sufficient resources to provide for themselves d. While in Zambrano the judgment expressly gave Zambrano the right to work; It is implied that the family was able to remain in the country despite being likely to require social and medical assistance from Belgium

What is 'Legal Residence'?

a. This is a period of residence that complies with the Directive's conditions b. The person must have resided in a host MS as a worker, self-employed person or had sufficient resources for themselves and their family not to draw social assistance and have comprehensive sickness cover c. Article 16(3) i. Continuity of residence is not affected by: 1. Absences not exceeding 6 month in total per year 2. Absence due to compulsory military service 3. A single absence of a maximum of 12 months for serious reasons, such as: a. Illness b. Pregnancy c. Study d. Right of permanent residence can be lost if they leave for 2 years or become a threat to public policy or public security

Residence permits?

a. V. limited The Directive abolishes the requirement of residence permits for EU citizens but they can be required to register after 3 months b. Registration must be granted upon presentation of i. Valid ID or passport; and ii. proof they meet the requirements set out by the Directive c. TCNs can be required to obtain a residence permit, valid for 5 years d. The right of residence ends if the person breaks any conditions of residence required by the Directive They can be deported on the grounds of public policy, security or health

A relationship of subordination

a. Whether such a relationship exists is to be determined by the consideration of all circumstances b. Technically this meant that they were self-employed, but the ECJ considered other practical factors relevant such as: c. The extent of their freedom to choose their: i. Timetable ii. Place of work iii. Content of their work d. The fact they could refuse work from the agency was not relevant

When are non-workers still workers under Directive 2004/38

a. Workers retain their status as workers under the Directive when: i. They are temporarily unable to work due to illness or accident ii. They involuntarily lose their job after working > 1 year and register as a job seeker iii. They involuntarily lose their job either having worked < 1 year or having completed a fix term contract < 1 year. They are still workers for a minimum of 6 months iv. They became involuntarily unemployed then engage in vocational training related to their previous employment

Dereci summary

a. just because you would like your family to come and live in the same country as you, does not mean that is not enough to grant them residence b. It is only sufficient if a lack of a right to residence will result in the EU citizen having no practical alternative but to leave (and therefore making them unable to enjoy their rights as EU citizens) c. So it seems that the law ONLY assumes an EU citizen will have to leave the EU if they are a minor child and the TCNs being forced to leave are their parents

Article 3 of Directive 2004/34

a. relates to the right of entry and residence of family members that are not covered by Article 2(2) b. This covers three categories: i. Those who were dependants or members of a household of an EU citizen in their original country ii. Those who require personal care by an EU citizen due to serious health grounds iii. A partner with whom the EU citizen has a durable relationship which is duly attested iv. Article 3 (broader category) v. If there is a family member who fits under Article 3 then the MS is required to examine the personal circumstances of such persons and must justify any denial of entry vi. They are not required to allow them to reside just because they fit under Article 3

McCarthy: More detail

a. she couldn't rely on the Directive, because she had not crossed the border into another MS b. She couldn't rely on Art 21 because she was not being deprived of the genuine enjoyment of the substance of her rights as an EU citizen c. She could remain in the UK as long as she wanted In contrast to the children's cases the court didn't assume that if she couldn't have her spouse come to live with her in the UK she would have to leave

Art 47 TFEU

addressed to MS which shall take measures encouraging the exchange of young workers

Levin Case 53/81

authority for part-time work. 1. Levin, a British national, lived in the Netherlands where she worked part-time. Her income was small but she was supported financially by her husband, a non-EU national. The Dutch authorities refused her a residence permit, claiming that she was not a worker because her wage was lower than the nationality recognised minimum subsistence level. 2. CJEU held that, provided work is an 'effective and genuine' economic activity and not 'purely marginal and ancillary', a part-time worker is entitle to [EU] free movement rights as a worker. Further, a person's motives in seeking employment in another MS are irrelevant.

Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze

held that while seeking employment workers are not entitled to the same social benefits as those of workers actually in employment

What is the point of having free movement of workers?

i. Art 45 TFEU ii. Art 46 TFEU iii. Art 47 TFEU iv.TF Directive 2004/39/EC Directive on the right of EU citizens and their families in terms of movement and residence. This has some rules relevant to workers too v. Regulation 883/04 vi. Regulation 492/2011 vii. Directive 2014/54

When are non-workers still workers? = Work seeking

i. Dir 2004/38 Article 14(4)(b) states that work seekers cannot be expelled as long as they are seeking employment and have a 'genuine chance' of being employed ii. However, Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze held that while seeking employment workers are not entitled to the same social benefits as those of workers actually in employment iii. EU nationals are entitled to enter and remain in another MS to seek work Case C-292/89, Antonissen [1991] ECR I-745 Case C-138/02, Collins [2004] ECR I-2703

Application in an exam

i. Is there a relevant freedom? 1. This could be any of the freedoms, but here we'll continue on the basis that it is FMW ii. Define the requirements of that freedom: 1. Genuine and effective activity 2. Activity of an economic nature 3. A relationship of subordination 4. For remuneration iii. What obstacle exists? 1. Discrimination? 2. Market Access? iv. Justification 1. Treaty exceptions: Art 45(3) TFEU 2. Case law justifications/mandatory requirements (e.g. Case 379/87 Groener) v. Proportionality/Suitability 1. Does it actually achieve the proposed objective? 2. Does it go further than necessary to achieve the objective?

How is there protection from discrimination?

i. National measures that are directly discriminatory can be justified only on the basis of express derogations set out in the Treaties or secondary legislation ii. These usually include matters of public policy, public security and public health iii. They also must be proportionate the aims that they are intended to achieve iv. Indirect discrimination and measures that hinder the exercise of the right in Article 21 TFEU can be justified sometimes, but must be proportionate. C-192/05 Tas-Hagen and Tas i. Directive 2004/38, Article 24: EU citizens and their family have the right to equal treatment with MS nationals ii. Article 22 TFEU: The right to participate in municipal elections and EU Parliament elections iii. Article 23 TFEU: EU citizens in a non-EU country where their own MS does not have representation can use the consular assistance of any MS (as if they were a national of that MS) iv. (Reg 211/2011) The right to access the citizen's initiative v. Article 24(2) TFEU Right to petition the EU Parliament vi. Article 24(3) TFEU: every EU citizen has the right to make a complaint to the EU Ombudsman vii. Article 24(4) TFEU: The right to use one of the official languages of the EU to write to the EU's institutions, offices, agencies, bodies etc. and receive an answer in the same language

What is the point in having exception to free movement of persons?

i. Some jobs might legitimately be kept for MS nationals alone ii. Some people should not be able to enter your country at will because they are a threat iii. If there is a disease that is breaking out you may want to protect your own population from contamination

What is the point of citizenship?

i. The Maastricht Treaty First introduced the concept as part of the attempt to move from a mainly economic community to a political union Craig/De Burca ii. Montevideo Convention - citizens are one of the four requirements to have a country iii. EU is not presently a country, but if it is to become one, it needs its own citizens iv. Citizenship also plays a role in trying to lead the EU further away from being 'just' market based, where right revolve around economics and move towards having a legal framework for building up rights independent of the market Normally such matters are part of the MSs' jurisdiction meaning 'Citizenship should thus be approached as contestation territory, playing a structural role (Kochenov) controversial area, MS like to be in control of this area vi. Grezelczyk

Art 26(2) of Directive 2004/38

i. requires that measures taken on grounds of public policy or public security must be based exclusively on the personal conduct of the individual concerned 1. For the person to be excluded their personal conduct must represent a: 'genuine, present and sufficiently serious threat'

Exception to Free movement of Persons: Treaty Articles (art 45, 21)

i. subject to limitations justified on grounds of public policy, security or public health' ii. Art 21: subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect

Regulation 492/2011 Articles 1-6

relate to prohibiting discrimination in the access or performance of their employment (e.g. in being able to take up employment, in performing their employment, in seeking employment etc.)

Regulation 492/2011 Articles 7-9

relate to the rights they have once working (e.g. right to the same treatment, remuneration, dismissal, re-employment, access to vocational training, access to housing etc.)

Case 66/85, Lawrie-Blum [1986] ECR 2121(what is a public service)

trainee teachers are not a public service post