Solicitors Qualifying Examination

Free Movement of Persons: Articles 20 and 45 TFEU | EU Law – SQE1 & SQE2 Examinations – solicitorsqualifyingexamination.net

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Free Movement of Persons: Articles 20 and 45 TFEU
Historical Development
• Free movement applied only to the ‘economically active’ = Treaty of Rome
1957
o Regulation 492/2011 = employment, social and educational rights
(+ for family members)
• Extended in 1990s to others:
o Directive 90/364 – persons with sufficient resources and sickness
insurance
o Directive 90/365 – retired persons who had previously been
employees / self-employed
o Directive 93/96 – students
• Article 20 TFEU – all citizens of MSs = citizens of Union ~ includes right to
move and reside within MSs (Art 20(2)(a))
• Directive 2004/38 – Citizenship Directive – Rules governing free
movement of persons
o Rules of rights of entry and residence
© Liam Porritt 2020 2
Free Movement of workers
Article 45 TFEU
1. Freedom of movement for workers
2. No discrimination based on nationality
3. Rights (subject to limitations on grounds of public policy, public security
or public health):
a. Accept offers of employment
b. Move freely in MS for this purpose
c. Stay in MS w/ provisions governing employment of nationals
d. Remain after employment (subject to conditions)
4. Does not apply to employment in public service
Regulation 492/2011
• Equal treatment – employment, tax, social advantages + access to
education for workers and certain family members
Directive 2004/38
• Rights of entry and residence (all Union citizens and family members) –
‘workers’ can reside for longer than 3 months
Definition of a ‘worker’
Hoeskstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en
Ambachten
• Union meaning, not national law meaning
Employment relationship
• Engaged in economic activity with character of gainful employment
(Walrave & Koch)
• Applies only to activities of an economic nature
o Walrave & Koch v Association Union Cycliste Internationale –
practice of sport subject to Art 45, as long as economic activity w/
character of gainful employment
§ RE: pace makers in cycle races challenge rules of
international body about who can be pace maker ~
discrimination on grounds of nationality
• Lawrie-Blum v Land Baden-Württemberg: for a certain period of time a
person
1. performs services (gives lessons as trainee teacher)
2. for and under the direction of another person (supervisor /
school)
3. in return for which he receives remuneration (paid)
© Liam Porritt 2020 3
Effective and genuine economic activity
Levin v Staatssecretaris van Justitie
• Includes part-time work for less than minimum required for subsistence
under national law
• Includes those who supplement income with social security benefits
(Kempf v Staatssecretaris)
• Includes work contributing to commercial activities within religious
community for pocket money and accommodation (Steymann v
Staatssecretaris)
• Excludes such small scale activities that marginal or ancillary
o Bettray v Staatssecretaris – drug addict rehabilitation program
through employment ~ passed Lawrie-Blum test, but economic
activity secondary to primary aim of rehabilitation, so not ‘worker’
o Trojani v Centre Public d’Aide Sociale de Bruxelles – sociooccupational reintegration program ~ work at salvation army ~
ECJ: passes Lawrie-Blum test and for Belgian court to decide
Job seekers
• Right to accept offers of employment (Art 45(3)(a) TFEU)
• Right to remain in MS after employment subject to conditions of
Commission (Art 45(3)(d) TFEU)
o Protects person who has left job and is capable of taking another
(Hoeskstra (née Unger) v Bestuur der Bedrijfsvereniging voor
Detailhandel en Ambachten)
• Procureur du Roi v Royer – Art 45 confers right to reside in another MS to
look for work = confirms Directive 2004/38, Art 14(4)(b)
• R v Immigration Appeal Tribunal, ex parte Antonissen – right to live in
another MS while seeking work can be subject to time restriction:
‘reasonable time’ to find offers of employment (6 months qualifies as
this), unless show continuing to seek employment and has genuine
chances of being engaged (codified by Directive 2004/38 Art 14(4)(b)
below).
• Art 7(2) of Regulation 492/2011 – migrant workers with right to same
social and tax advantages as nationals, not for job seekers (confirmed in
Collins)
© Liam Porritt 2020 4
Union Citizens
• Article 20(1) TFEU: all citizens of MSs also Union citizens
• Article 20(2) – rights of Union Citizens ~ move and reside freely Art
20(2)(a) + 21(1), subject to limitations (i.e. Dir 2004/38) and conditions
• Union citizenship + Art 18 TFEU (prohibiting discrimination on
nationality) = erosion of free movement’s link to economic activity
o Grzekczyk v Centre Public d’Aide Sociale: ‘same treatment in law
irrespective of their nationality, subject to exceptions’
o Now free movement rules = Directive 2004/38
Bringing people with workers and Union citizens
• Family members
o Art 10(1) Regulation 1612/68 ~ right for worker to install:
§ Spouse
§ Worker or spouse’s descendants under age 21 /dependents
§ Worker or spouse’s dependent relatives in ascending line
o Netherlands State v Reed – spouse ≠ cohabiting partner
o Directive 2004/38, repealed Art 10 ~ Art 2(2) now also includes
registered partner (if treated as equivalent to marriage in host MS
+ subject to conditions in host MS) in place of spouse (all 3) above
§ ‘Spouse’ now gender neutral, even if same-sex marriage not
recognized in host MS (Coman)
§ No registered partnerships in: Bulgaria, Latvia, Lithuania,
Poland, Romania, Slovakia
§ Conditions of host MS: e.g. UK only recognizes same-sex
partnerships (civil p.)
• Beneficiaries:
o Article 3(2)(a): MS must facilitate entry and residence of
beneficiaries => other family members, irrespective of
nationality, who are: (1) dependents OR (2) members of household
OR (3) whose serious health problems require personal care of
such a person.
§ Dependent = someone needing material support of union
citizen in order to meet essential needs at the time when
they apply to join union citizen (Jia v Migrationjverket)
o Article 3(2)(b): Partner with whom Union citizen has ‘durable
relationship, duly attested’
© Liam Porritt 2020 5
Rights of entry and residence
• Right to move and reside freely w/ citizenship – Art 20(2)(a) + 21(1)
TFEU
• Directive 2004/38…
Rights of exit and entry
• Union citizens + family members ~ leave and enter with passport
o Non-EU family may need visa, but MS must offer facility for getting
one
Right of residence
• Up to 3 months (Art 6)
o Passport alone
o Must not become unreasonable burden on social assistance system
of host MS (Art 14(1))
o No obligation for family members to reside with citizen (Diatta v
Land Berlin)
• Over 3 months (Art 7(1) + 7(2)) – for citizens + citizen or non-citizen
family members if union citizen is:
a) Worker/self-employed in host MS; or
b) Sufficient resources not to become burden + comprehensive
sickness insurance cover; or
c) Study/vocational training at establishment recognized by MS +
have comprehensive sickness insurance cover + assurance to
national authority of sufficient resources
© Liam Porritt 2020 6
Retention of rights of residence (+ other worker’s rights)
• Job seekers – R v Immigration Appeal Tribunal, ex parte Antonissen – right
to live (with family) in another MS while seeking work can be subject to
time restriction: ‘reasonable time’ to find offers of employment (6 months
qualifies as this), unless show continuing to seek employment and has
genuine chances of being engaged (codified by Directive 2004/38 Art
14(4)(b) – see below for more detail).
o Art 14(4)(b) – May stay for ≤ 3 months + only > 3 months if:
§ Sufficient resources, or
§ Seeking employment with a genuine chance of employment
• No right to social assistance (Art 24(2) Dir 04/38)
• Unemployed: Article 45(3)(d) TFEU + Art 7(3) Dir 04/38 – worker /selfemployed unable to work retains status as worker, if:
a) Due to illness or accident;
b) Involuntary unemployment after > 1 year’s employment +
registered job seeker = permanent status as worker
c) Involuntary unemployment after < 1 year or contract < 1 year +
registered job seeker = status as worker for 6 months
d) Embark on vocational training (if not involuntarily unemployed,
must be related to previous employment)
• Separation: Rights unaffected if marriage not dissolved (Diatta v Land
Berlin)
• Divorce etc.: dissolved except:
o Art 13(1): right of residence retained for citizen’s family members
who are nationals of a MS
§ May acquire right of permanent residence after 5 years if
satisfy economic independence (Art 7(1)).
o Art 13(2): Retention of RoR for third-country family members if:
a) Marriage/partnership > 3 years before initiation of
termination + > 1 year in host MS
b) Person has agreed or court ordered custody of union
citizen’s children
c) Termination due to particularly difficult circumstance (e.g.
domestic violence)
d) Person has agreed or court ordered access to minor in host
MS
+ must continue to be workers / self-employed OR have sufficient
resources and insurance
© Liam Porritt 2020 7
• Death or departure of union citizen:
o Do not affect RoR for MS nationals (Art 12(1))
o Third-country family members (Art 12(2)):
§ Departure = loss of RoR
§ Death = must have been residing in host MS for ≥ 1 year
before death
§ Except, death / departure do not effect children or parent of
children, if children reside in host MS + enrolled in
education
Right of Permanent Residence
• Article 16 – Union citizens and family members ~ permanent residence
after 5 consecutive years (no need for conditions of residence over 3
months), unless absence of longer than 6 months (or 12 months for
important reasons, e.g. child birth)
• Article 16(4) – lost if depart host MS for > 2 years
• Art 17 – workers + self-employed:
o Retire at retirement age or after working in MS for ≥ 12 months +
residence > 3 years
o Permanent incapacity to work after > 2 years residence
o Workers + self-employed, after 3 years permanent employment
and residence, work in another MS while retaining place of
residence in host MS (returning at least once a week)
• Can register for citizenship 1 year after permanent residency
© Liam Porritt 2020 8
Employment rights
Discrimination
Art 45(2) + 45(3)(a) ~ no discrimination + accept offers of employment =
fleshed out in Regulation 492/2011 ~ prohibit direct discrimination,
indirect discrimination and indistinctly applicable measures which impede
access to the employment market
Direct Discrimination
• Commission v France (French Merchant Seamen) – ration of three French
to one foreign national on merchant fleet + certain positions reserved for
French
o CJEU – free movement extends to sea transport
Indirect Discrimination (Art 3(1)(b) Reg 492/11)
• Württembergische Milchverwertung-Südmilch AG v Ugiola – West German
law only took into account military service (by anyone of any nationality,
i.e. not direct discrimination) in own military in determining seniority in
workforce; Italian military service did not count – this was indirect
discrimination against those undertaking military service in own
countries
• Possible to justify on objective public interest grounds + proportionate
– Sotgiu v Deutsche Bundespost
o Higher allowance to workers whose place of residence within
Germany than outside
o Justified as residents in Germany were only to be paid temporarily
until returned home, but foreign residence was going to be
permanent as long as continued working in Germany
• Discrimination also justifiable on linguistic grounds, required by nature of
post to be filled – Art 3(1) Reg 429/2011 + Groener v Ministry for
Education
o Dutch national applying for full-tie teacher role in Ireland =
requirement to speak Gaelic justified in promoting Irish Gaelic
© Liam Porritt 2020 9
Non-discriminatory obstacles to accessing the employment market
• Kraus v Land Baden-Württemberg
o To use academic title obtained abroad, must apply to German
authority
o German having studied LLM in Edinburgh refused
o CJEU: obstacle to free movement of workers between MSs – as
academic title advantageous to worker, and to inhibit its use is
thus an obstacle
o May be justified if:
§ Pursues legitimate objective compatible with Treaty +
§ Pressing reasons of public interest +
§ Proportionate
o ~ Prevent misleading use of academic titles = justification
• Union Royal Belge des Sociétés de Football Association ASBL v Bosman
o Requirement for some transfer fee after end of contract contrary
to free movement of workers (even if applied equally throughout
Europe, internally and between MSs)
Right of family members to take up employment
• Directive 2004/38, Art 23 = Union citizens’ family members (inc non-EU)
have right to work
• Can take up employment on same conditions as Union ‘worker’ –
Regulation 492/2011 + same rules governing access to occupation as
nationals of MS (Gül v Regierungspräsident Düsseldorf)
o Here, spouse (doctor) of EU citizen (British) working in Germany
had the right not to have access to employment subjected to
conditions not applicable to nationals (Art 3(1) Reg 492/11)
© Liam Porritt 2020 10
Social assistance and other financial benefits
Article 7(2) for workers
Article 7(2), Reg 492/2011: worker + national of MS = ‘same social and tax
advantages as national workers’, once worker/family members have spent 3
months ~ Article 24(2), Directive 2004/38;
• Jobseeker ≠ worker, so not entitled to same advantages (Collins v
Secretary of State for Work and Pensions)
• Social advantage:
o Benefits ‘generally granted to workers primarily because of their
objective status as workers or by virtue of the mere fact of their
residence on the national territory’ (Ministère Public v Even)
§ Here, benefit to Belgian servicemen for suffering in war for
own country; not granted merely because they were
workers / residents, so not available to foreigner (French)
o Includes:
§ Discretionary childbirth loans (Reina v Landeskreditbank)
§ Minimum income allowance (Hoeckx v Centre Public d’Aide
Sociale)
§ Funeral expenses benefits (O’Flynn v Adjudication Officer)
§ Right to have a non-national live with you in a stable
relationship (Reed)
• Family members:
o Cristini v SNCF – Families with > 3 children = discount rail card
o Husband of Italian woman working in France, applied for card and
then died
o They had right to them, as he was a worker at time of application
o Inzirillo v Caisse d’Allocations Familiales
§ Italian national working in France applied for allowance for
handicapped adults on behalf of disabled son = worker can
get social assistance on behalf of dependent family member
§ Son entitled as father a worker, and him a dependent child
of father ~ NB: important as not granting allowance could
inhibit worker from staying in France
o NB Art 24(1) to include (non-EU) family members, i.e. spouse,
children and ascending relatives CAN claim
© Liam Porritt 2020 11
Article 20 +18 – general right vs discrimination
Union citizens: Art 20 (free movement of Union citizens) + 18 (no
discrimination) TFEU ~ Union citizens who are lawfully resident in MS have
right to equal treatment with host MS nationals in all fields covered by the
Treaties, including access to social assistance, except as under Art 24(2) Dir
04/38
• Matínez Sala v Freistaat Bayern – Spaniard lawfully residing in Germany,
having held various jobs, but now unemployed and receiving social
assistance
o Applied for residence permit renewal
o Applied for child raising allowance – rejected, not German or
residence permit
o CJEU: lawful resident has right under Article 18 TFEU not to be
discriminate against on grounds of nationality ~ Germany did not
require Germans have residence permit to grant child raising
allowance, so could not to foreign nationals
• Grzelczyk v Centre Public d’Aide Sociale – French student in Belgium, in
final year of study applied for minimum subsistence allowance
(minimex), only for Belgians or Art 7(2), Reg 492/2011
o Not worker, so not Art 7(2)
o Lawful resident in Belgium, therefore could not be denied minimex
when Belgians not subject to same condition
o The decision in this case that the student was not deemed to be a
‘burden’ may now be questioned by Dano v Leipzig (see below), as
in Grzelczyk the student was not Art 7(1)(c) compliant (i.e. lacked
sufficient resources), so likely would not now be able to claim
• D’Hoop v Office National de l’Emploi – Belgians who have just finished
university looking for jobs are entitled to tideover allowance (in Belgium)
o Conditional upon completing all of education in Belgium – D’Hoop
had studied in France in secondary school
o CJEU: indirect discrimination against freedom of movement, as
would discourage students from exercising right to movement =
the national of a MS (Belgium) was being denied equal treatment
for exercising her right to free movement
o Discrimination may be justified though = not decided on in CJEU
• Collins v Secretary of State for Work and Pensions – Irish citizen claims
jobseekers allowance
o Denied as not habitually resident in UK
o CJEU: indirect discrimination as easier for UK nationals than
others
o But justifiable: only grant allowance after a genuine link
established between job seeker and employment market of state
(which will then grant habitual residence, Art 14(4)(b) Directive
2004/38).
© Liam Porritt 2020 12
Codification of equal treatment, Art 24(1)
Article 24(1), Directive 2004/38 ~ general right to equal treatment for those
residing on basis of Directive, but subject to (which override primary
legislation against discrimination):
• Specific provisions provided for in Treaty and secondary law
• Art 24(2): MS not obliged to confer entitlement to social assistance during
first three months of residence or during longer period job seekers
entitled to remain under Art 14(4)(b) ~ must show continuing search and
genuine chance of employment
• Dano and Dano v Jobcentre Leipzig – Romanians residing in Germany, not
looking for work, apply for jobseekers benefits
o Dano not within Art 24(2) exceptions
o But, she did not meet any conditions for residence ~ Art 7(1)(b) =
not burden + medical insurance / Art 14(4)(b) = seeking
employment and have genuine chance of employment
o Cannot claim Art 24(1) right to equal treatment when residence
not compliant with Articles of same Directive
• Further rules: Regulation 883/2004
© Liam Porritt 2020 13
Education rights
Access to vocational training (applying generally, not just to children of
workers)
• Gravier v City of Liège (French student studying cartoons in Belgum) –
imposition of any condition of access (e.g. fee) not imposed on nationals =
contrary to Art 18 TFEU
o Vocational training = education preparing for employment, even if
some element of general education
o Blairzot v University of Liège – university = generally to vocational
training, unless only for general knowledge
Access to vocational schools + retraining centres (Article 7(3))
• Brown v Secretary of State for Scotland – CJEU: vocational schools =
instruction between employment / connected with employment (i.e. not
universities)
Access to education
Regulation 1612/68, now Reg. 492/2011:
• Workers have right to equal access to training in vocational schools +
retraining centres as nationals (Article 7(3))
• Children of workers have same right to general education, apprenticeship
and vocational training courses as nationals (Article 10 + Eternach and
Moritz)
o Eternach:
§ Equal rights to university + technical colleges
§ Child retains rights when has been studying, parent leaves,
and child is unable to pursue studies in State of origin
© Liam Porritt 2020 14
Education Grants
• Brown v Secretary of State for Scotland – grants to students for
maintenance not included (Art 24(2)(b))
o … even if short period of work, if this work is ancillary to studies
(e.g. internship at start of studies, as here)
o Such grants only available after time residing in MS (although
additional conditions, such as the requirement to be ‘settled’
should not be imposed) => time requirement for residence
uncertain:
§ 3 years in Bidar
§ 5 years in Förster
• Lair v Universität Hannover – maintenance and training grants = social
advantages within Art 7(2) (Reg 492/2011), i.e. person entitled if:
o Worker, self-employed + status of worker under Art 7(3) Dir
04/38;
o Link between previous employment and studies; or
o Involuntary unemployment = retrain in another field
• Directive 2004/38, Article 24(2)(b) – MSs obliged to pay student loans /
grants to:
o Persons with right to permanent residence; or
o Family of workers (Art 10 Reg; Art 24(2)(b) Dir; Casagrande)
§ Casagrande – measures to facilitate educational attendance,
inc. grants ~ if nationals’ children get them, so do nonnationals’ children
§
© Liam Porritt 2020 15
Derogations to Free movement of persons
Article 45(3) = free movement of workers derogations:
1. Public policy
2. Public security
3. Public health
Also applies to Article 27(1) of Directive 2004/38.
Application of derogations, per Chapter VI (Art 27-33) of Directive 2004/38…
Public policy and public security
Article 27(1):
• Derogations not for economic ends
Article 27(2):
• Measures taken must be proportional
o Deportation must not be arbitrary – i.e. not used when own
nationals would not be detained (Adoui and Cornuaille –
prostitutes)
o Prohibition on residence on grounds of public policy only from
whole of national territory, when proportionate + necessary (Rutili
v Minister for the Interior)
§ Here individual banned from Lorraine for union activities
o Measures must account for fundamental ECHR rights (e.g. right to
respect for family life) (Orfanopoulos v Land Baden-Württemberg)
§ Greek drug addict deported from Germany after
convictions, but he had a German wife and children
• Measures based exclusively on personal conduct of individual
o Association with an organization (Van Duyn v Home Office –
scientologist)
o May place restrictions (not in place for own nationals) on
particular employment
o Must not use deportation to deter others (Bonsignore v
Oberstadtdirektor der Stadt Köln – deportation to deter firearms
abuse)
• Personal conduct of individual must represent genuine, present and
sufficiently serious threat affecting one of the fundamental interests of
society (R v Bouchereau)
o Past criminal convictions are not in themselves grounds for
deportation (unless exceptional circumstances, where
demonstrates they are a present danger – R v Bouchereau)
© Liam Porritt 2020 16
Article 28:
• MS must take into account how long has been resident, age, health, family
etc.
• Not against people or family members with right of permanent residence,
except on serious grounds of public policy / security
• Not against residents who have been residing for > 10 years / a minor
(unless in their best interests), unless imperative grounds of public
security
Public Health
Article 29:
• Derogation if epidemic potential of diseases / other infection diseases
subject to protection provisions applying to nationals of host MS
• Diseases occurring 3 months after entry ≠ grounds for derogation
• MS may, within first 3 months, require medical examination
Public Service Exemption
Article 45(4):
• Art 45 does not apply to employment in public service
• Sotgiu v Deutsche Bundespost – once non-national admitted to public
service, this cannot be used as grounds for discrimination
• Commission v Belgium (‘Public Employees’): definition of public service:
o Participation in exercise of powers conferred by public law; and
o Duties designed to safeguard the interests of the state = allegiance
to state
• In this case (Commission v Belgium), a variety of roles (inc. architect)
within a local authority were deemed to fall within the public service
exemption
• Nurse ≠ public service (Commission v France (‘French Nurses’))
• Trainee teacher in state school ≠ public service (Lawrie-Blum)

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