Free movement of Persons - Workers - Lecture 12-13 - EU law

What are the basic treaty provisions for FMP (free movement of person)? (in regards to both free movement of workers, freedom of establishment, free movement of services, and the free movement of EU citizens - there are 5 relevant treaty provisions)

• Article 45 TFEU on workers;

• Article 49 TFEU on freedom of establishment;

• Article 56 TFEU on services

• Arts 20&21 TFEU on EU Citizenship

Which basic treaty provisions for FMP are mutually exclusive and why? And do they have HDE or VDE, and what following case law reinforces the following?

All of them are mutually exclusive.

This means you cannot claim multiple breaches in law, you must choose one as they immediately exclude one another. but common principles apply as regards the entry into and residence in the territory of the Member States: as per Procureur du Roi v Royer.

All have VDE, but the CJEU has only explicitly recognised HDE for Art 45 TFEU as per the Angonese case.

They also have vertical direct effect, but freedom of moevment for workers has direct effect for workers, which is distinct from the rest.

How is the geographic mobility of the EU, and how does it compare to the rest of the world generally, and which age group is more likely to utilise the FMP and be more mobile?

Labour markets in the EU are characterised by low levels of geographic mobility - despite huge wage differentials - and marked variation in unemployment rates (between 5-27% across the EU).

Approximately 4% of EU citizens live and work in a different Member State from their country of origin, in contrast to 13% mobile population stock in the US.

Young people tend to be more mobile (6% of students move across the EU), while the willingness to move declines sharply after the age of 30-35

What are criticisms of FMP generally?

Roughly 14 million EU nationals live in another country, and 29 million non-EU civilians live in the EU. About 4% of all working age population is mobile in the EU as per 2023.

Plus, mobility is unevenly distributed (brain-drain concerns) such as Germany hosts 1/3 of all EU movers, with 25% of all movers are romanian, and 12% are polish and 10% italian.

What are 4 overall reasons as to why there is a dramatically low mobility rate in the EU?

• Personal reasons (cultural and linguistic obstacles)

• Family reasons

• Economic reasons (e.g., loss of entitlements to social benefits and pensions)

• Member State resistance (typically through all kinds of barriers to exiting one’s country)

What is the distinction between two types of mobility within the EU - when discussing FMP?

Though there are distinctions between two types of mobility - labour and other mobility.

• Labour mobility consisting of those in employment, such as free movement of workers, or being self-employed or posted workers who provide a free provision of services, this mobility provides freedom of establishment.

• Though other mobility consists of job-seekers who look for jobs who are unemployed and then cross over to the other side of labour mobility, making them a hybrid, though there are family members who have derived rights from citizens who moves here, or students, and pensioners who seek to emigrate to warmer regions of Europe, utilising their pensions elsewhere.

What economic theories and principles are FMP grounded in historically, and what report embraced this approach?

The initial logic supporting such free movement was economic in nature: in the realm of FMP, the free movement of labour is seen as a key component of the internal market. Free movement of “factors of production”: labour and capital – creates more efficient markets according to neoclassical economics. This approach was also embraced by the 1956 ‘Spaak Report’.

Relates to neoliberal economic theory, that freedom movement would lead to equalisation of price of labour across the EU and allows for more efficient markets (requirement of resources, goods to be transformed to sources and the money to afford the following), these require the optimisation of the market in relation to labour, value and resources, and this is optimising the price of labour, in consideration that there are areas with less labour where it is expensive and more labour where it is cheaper, this discrepancy is moving the labour where it is needed, to address these concerns of labour distribution.

What are the 3 arguments in favour of FMP/labour mobility within the EU?

• Promotes labour market efficiency by rebalancing labour supply and demand between different EU regions

• Mobility helps Europe adapt to changing international market conditions

• Mobility is a key to meeting international competition challenges, rapid technological change and the requirements of a knowledge society

Van Dyun case outlines that all 5 provisions (such as Article 45, 49, 56, 20 and 21 TFEU) have VDE in relation to FMP, what is the context and outcome of Van Dyun?

Context → Van Duyn was a case of the Netherlands trying to expel two French women who were engaged in prostitution.

Outcome → The court argued that they allowed prostitution as a regular economic activity and would be taxed, therefore why then argue that just because the ladies were French, that Dutch would rely on a public policy exception and expel them? If the Netherlands allowed the same activity to be done by their own dutch citizens.

Importance → Van Dyun case outlines that all 5 provisions (such as Article 45, 49, 56, 20 and 21 TFEU) have VDE in relation to FMP

Baumbast case outlines that all 5 provisions (such as Article 45, 49, 56, 20 and 21 TFEU) have VDE in relation to FMP, what is the context and outcome of Baumbast?

Context → Rudi Baumbast, a German national, worked in the UK while his family lived there. The UK refused to renew his family's residence permits because he was working in other countries, and the UK argued he lacked comprehensive sickness insurance, which was required for non-active citizens.

Outcome → The court ruled that children, having moved with a parent working in a host state, have a right to stay and finish their education, regardless of the parent's current employment status. They concluded the primary carer (parent) of these children has a derived right of residence. The CJEU ruled that citizens of the Union can rely directly on article 21(1) TFEU to reside in another Member State, even if they do not perfectly meet all requirements of directives (such as comprehensive insurance), provided it is not a disproportionate burden.

Importance → Baumbast expanded the scope of pre-existing case law of worker's families in relation to education and residency rights (such as the EU worker leaving and the children are educated there) and the Baumbast case concluded that the rights of children to have a carer - someone has to take care of you whilst your parents are away, and Article 12 Citizenship Directive outlined that the can continue their education, but stay with a carer and the carer has a right to stay with them.

What is the FMP scope under EU limited to, and when does EU law apply to FMP? And what does the 3-fold test consist of?

FMP scope under EU law is limited by Primary and Secondary law.

In order to decide whether a situation falls under the scope of EU Law, we have to apply a 3-fold test: Claimant must fall within the personal, material and territorial scope of the Treaty -

• Personal Scope → must have nationality of an EU member state (Art 20.1 TFEU) – MSs as ‘gatekeepers’ to EU Citizenship as per the Kaur case, but principle has been recently eroded as per the Rottmann case → If they are a member state citizen, they fall within the personal scope. But if it is the family member of the civilian, then they'd fall within the scope. AND only EU member states can decide who is the citizen and not.

• Material Scope → economic/non-economic migrant + students/pensioners/family members: is the issue being disputed (f.i. economic and social advantages attached to a contract of employment; social security benefits; some other state contribution paid to all residents in a certain state etc.) fall under the remit of EU law? → What is the person claiming, does it fall within EU law (such as acts of employment, conditions of employment) that the EU regulates, if they claim what the EU regulates, it has to be a matter that the EU delegates and has conferred to?

• Territorial Scope → interstate movement – not applicable to ‘wholly internal situations’ (but the case Zambrano changed this to a limited extent)

Once you have established that a matter falls under the scope of EU law (by applying the 3-fold test which consists of personal, material and territorial scope), what must you establish NEXT? (3 things)

You need to establish whether there has been a breach of EU law, and you do this through -

• Obstacle/hindrance to free movement = market access test for FM of Goods

• Goes beyond discrimination issue, considers merely if the rule is likely to prevent or hinder free movement→ if yes, is it justified? as per Bosman case → the Court has progressively expanded this remit of this test to the point where the ‘material scope’ test has become irrelevant (virtually any issue is deemed to come under the remit of EU law)

• More recently CJEU has also tested if rule is likely to hinder ‘residency’ – Zambrano case↔ McCarthy and Dereci

Bosman case as the judicial test after the 3 fold-test, what is the context and outcome? And how did the Bosman case alter the judicial test, or it’s importance?

Context → Jean-Marc Bosman, a Belgian player, sued his club (RFC Liège) and association after they prevented a move to a French club in 1990 by demanding a high fee, despite his contract having expired. Bosman claimed that RFC Liege's refusal to release him was a breach of the principle of free movement of workers.

Outcome → The CJEU ruled that, under what is now Article 45 of TFEU, restricting a player's movement after their contract expires violates EU law.

Importance → This has been an update to the judicial test (such as is the rule making people think twice about moving, negatively impact them somwhow if they move?) and abolished the rule as per in Bosman.

What 4 main principles does Directive 20004/38/EC aka Citizenship directive outline in relation to the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States? And how does it vary from those economically active and non-economically active?

1. All EU citizens and their families are entitled to exercise their right to free movement provided that they do not become an ‘unreasonable burden’ upon public finances of host state

2. Economically active Union citizens and their families: enjoy full rights to free movement / residence; and to equal treatment within host state; they enjoy 3-month rights to free movement / residence during which time they have full rights to equal treatment within host state

3. Non-economically active citizens (to include students) must fulfil 2 criteria:

   • They must have comprehensive medical insurance for all risks in host state

   • They must have sufficient resources to avoid becoming burden on social assistance system of host state during period of residence

4. However, Union citizens (and family members) who have been lawfully and continuously resident in host state for 5 years become “permanent residents”: no longer need to satisfy conditions relating to economic activity and / or financial independence; enjoy full rights to equal treatment.

Metock case as the judicial test after the 3 fold-test, what is the context and outcome? And how did the Metock case alter the judicial test, or it’s importance?

Context → Several Member States, including Ireland and the UK, previously required non-EU spouses of EU citizens to have "prior lawful residence" in another Member State before joining the EU citizen in a new host Member State.

Outcome → The CJEU ruled that this "prior lawful residence" condition was incompatible with EU law. The right of a non-EU spouse to join an EU citizen is derived from the family relationship alone and does not depend on having resided elsewhere in the EU first.

What does Directive 2004/38 (aka citizenship directive) Article 4 Right to Exit entail? How does it relate to cases of Koebler and A v FIN?

• Right to leave home state and right to travel to another Member State simply on production of valid identity card or passport – note that States can impose penalties (criminal or financial) for lack of a suitable travel document, but the penalties must be proportionate and not excessive - as per the case A v FIN

• Right to exit also includes prohibition of measures which penalise own nationals for choosing to work abroad (as compared to treatment of own nationals who remain working within national territory) as per the case Koebler

How does rights of residence in a host state vary, when it comes up to 3 months (article 6 of Directive 2004/38) and for more than three months (article 7 of Directive 2004/38)?

Article 6 entails you can have right to residence for up to 3 months, alongside the requirement to hold a valid identity card or passport - this includes family members who aren’t MS nationals.

Article 7 entails you have right to residence for more than 3 months, if you fall into one of the 4 categories -

• workers or self-employed persons in the host member states

• sufficient reasons for themselves and their family members not to become a burden on the social assistance system of the host member states + have a sickness insurance cover in the host member state

• enrolled in a course of study, including vocational training and have comprehensive sickness insurance and sufficient resources

• are family members accompanying or joining a EU citizen who satisfies above conditions

What has the 2004 Citizenship Directive outlined in terms of distinctions between those with right to residence between 0-3 months and those after 3 months to 5 years and those up to 10 years relating to refusing entry and deporting? And what has the CJEU stated in relation to those who seek work as per Antonissen case and Article 14.4(b) Citizenship Directive? And what about prisoners?

Between 0-3 months, public policy, public security and public health apply as exceptions in regards to refusal of entry/expulsion.

After 3 months to 5 years, it's public policy or public security as to why people are refused entry or expelled.

If they have lived there between 5 and 10 years in the host country, that host country can only expel them for serious grounds of public policy or security (higher stakes).

After 10+ years, they can only be expeled or refused entry when there are imperative grounds of public security (such as cross border crimes/huge crimes subject to the 'imperative' levels/fundamental interests of society)

CJEU has also established that those who seek work have equally a right of entry and must be given a reasonable period of time to find it (generally six months – or longer if they can prove that they have a genuine chance to obtain it) as per Antonissen case. This is now covered by Art. 14.4(b) Citizenship directive which forbids expulsion of a Union citizen and their family so long as they are seeking employment, and they have a genuine chance of being engaged.

How does your 10 years account?

• Such as prisoners and whether it is classed to not face expulsion once released. The court has decided that years spent in prison do not count for the purposes of permanent residence or any way for qualifying for the ten years, because in the eyes of the courts, time spent in prison is not spent integrating into the host state.

• If you are in a high security jail with no chance of intergration, then it will not count, but a case created an exception stating that an open prison where they're allowed to work and see their family was classified as intergrating into society.

In relation to FMP for workers, who is classified as an ‘economically active EU citizen’ as per Article 45 TFEU? And what does the following case law of Antonissen, Van Duyn and Angonese say about Article 45 TFEU relating to HDE and VDE?

As per Article 45 TFEU, freedom of movement for workers shall be secured within the Union. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health.

As per Antonissen, the CJEU established that those who seek work have equally a right of entry and must be given a reasonable period of time to find it (generally six months – or longer if they can prove that they have a genuine chance to obtain it). This is now covered by Art. 14.4(b) Citizenship Directive which forbids expulsion of a Union citizen and their family so long as they are seeking employment and they have a genuine chance of being engaged.

Article 45 TFEU has vertical as per Van Duyn, as well as horizontal direct effect as per Angonese.

What is entitled to rely on Article 45 TFEU as per Hoekstra case?

‘Worker’ under Article 45 TFEU defined by EU and not national law as per Hoekstra.

As a result, worker has an EU meaning.

What is entitled to rely on Article 45 TFEU as per Levin case? What is the issue and outcome of the Levin case?

Issue → The issue was whether work as a chambermaid which paid less than Netherlands’ minimum wage, was sufficient to be considered a worker.

Outcome → It was concluded that she was a worker, irrespective of her payment and what the member state governments considered as a 'worker'.

The CJEU concluded that anything that constitutes ‘an effective means of improving their living conditions’ is to be regarded as ‘work’ under EU Law, as long as the activities are not on such a small scale as to be regarded as purely marginal and ancillary.

What is regarded as an essential feature of an employment relationship to be able to rely on Article 45 TFEU as per Lawrie-Blum case?

The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another in return for which he/she receives remuneration.

What is regarded as an essential feature of an employment relationship to be able to rely on Article 45 TFEU (addressing the ‘renumeration for services performed’ in Lawrie-Blum) as per the Steymann case? What is the context and outcome of Steymann case?

Context → He had worked for a religious community as a handyman and received remuneration in forms of housing for his work.

Outcome → Court said this classified as renumeration.

Steymann case shows that the court adopted a generous interpretation of “remuneration” as a payment in kind.

What is regarded as an essential feature of an employment relationship to be able to rely on Article 45 TFEU (addressing the ‘activities […] not on such a small scale as to be regarded as purely marginal and ancillary. in Levin) as per the cases of Bettray and Trojani?

Claimant must pursue activities which are effective and genuine, thereby excluding activities carried out on such small scale as to be purely marginal and ancillary.

As per Bettray, this would be a state drug rehabilitation programme: or as in Trojani: the sevices have to be capable of being regarded as forming part of the normal labour market.

Are part-time workers generally covered by Article 45 TFEU as per Levin, Kempf and Raulin cases?

Part-time workers are generally covered by Article 45 TFEU

• As per the Levin case, even if wages fall below official subsistence level or legal minimum wage

• As per the Kempf case, even if the claimant must in turn supplement his/her income from private/public funds, where Kempf was a part-time piano teacher earning less than minimum wage and the court found it irrelevant that he is seeking to supplement his income with social assistance from public funds, such as benefits

• As per the Raulin case, even if the number of hours are relatively small or only worked for a short period

Are part-time workers generally covered by Article 45 TFEU as per Antonissen? And what does Article 7(3)(a-C) 2004 Citizenship Directive state regarding people who lose their job, how long they’ve worked for prior to losing their job and how long they can retain their EU worker status? And how are job-seekers treated differently to workers as per the Collins case, and other advantages?

Worker’ includes those seeking work as per Antonissen.

Even if Art 45 speaks about accepting “offers of employment actually made”, job-seekers have a right to go to another MS to look for employment: “a strict interpretation of Article 45 would jeopardize the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective”.

BUT there is no indefinite right to look for a job: The Court held that a period of 6 months is sufficient to look for a job, unless -

The person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.

Art. 7(3)(a-c) of the 2004 CD which regulates how long an ‘EU Worker’ can retain their status after losing their job: six months if they worked less than 1 year, indefinitely (as long as registered as a job-seeker) if worked more than a year.

IMPORTANT - Job-seekers are treated differently, in that they have no entitlement to “tax and social” advantages, in contrast with workers as in Art. 24(2) CD and Collins case

Are the claimant’s intentions relevant when it comes to being classified as an EU worker within Article 45 TFEU as per the Levin case?

Once “effective and genuine” requirement satisfied, motives which may have prompted claimant to seek employment in host state irrelevant to claimant’s status as a worker, as per Levin

Is the claimant’s sphere of employment relevant when it comes to being classified as an EU worker within Article 45 TFEU as per the Lawrie-Blum case?

The nature of legal relationship, as matter of national law, between employer and employee is irrelevant - for instance, public as well as private law employment relationships covered by Article 45 TFEU.

Is the claimant’s sphere of employment relevant when it comes to being classified as an EU worker within Article 45 TFEU as per the Bosman, Lehtonen, Jany and Dona v Mantero?

Sphere of employment in which services are provided is immaterial -

• Sporting activities fall within Article 45 TEU insofar as constitute economic activity as per Bosman and Lehtonen

• Prostitution when Miss allow it as ‘legal and taxable employment’ for their own nationals as per Jany

• But events of sporting interest only do not fall within scope of Treaty as per Donà v Mantero

How does Article 45 TFEU benefit employers as well as employees as per Clean Car Autoservice?

Right of workers to be employed in another Member State necessarily entails right of employers to engage workers in accordance with Treaty Article 45 TFEU may therefore be invoked not only by workers but also by employers, eg. to challenge provisions of national law which discriminate against foreigners in recruitment process.

How has the Article 45 TFEU developed over case law to have both VDE (vertical direct effect), and HDE (horizontal direct effect) as per Van Duyn, Bosman and Angonese?

Van Duyn outlined that Article 45 TFEU had vertical effect.

CJEU Article 45 TFEU does cover collective self-regulatory bodies (HDE) as demonstrated by -

• Bosman and Angonese case→ This extended the HDE to include private bodies

What rights are conferred on economically active EU citizens - when it comes to prohibition of discrimination and equal treatment relating to Article 45 TFEU, Article 7 Regulation 492/2011 and Article 25 Directive 2004/34?

Article 45 TFEU is one of the special provisions which outlines the principle of non-discrimination based on nationality of workers relating to employment, remuneration and other conditions of work.

Article 7 Regulation 492/2011 outlines that workers will not be treated differently from MS national workers, especially when in conditions of employment, being unemployed and will enjoy the same social and tax advantages as national works.

Article 7 is strengthened by Article 25 Directive 2004/34 which confers a general right to equal treatment to all union citizens and their families, but restricts social assistance and study-related grants/loans to migrant workers and their families.

In relation to right to equal treatment and non-discrimination, what does it cover for economically active EU workers in terms of access to employment as in the cases of Com v Italy, French Merchant Seamen, Scholz and Groener (total bans, quotas, indirect discrimination and language requirements)?

Access to employment includes -

• Totals bans (such as in Com v Italy which placed a ban on working in private security firms, since you had to be Italian, however this is not the case)

• Quotas (such as in French Merchant Seamen where the quota was imposed requiring 3 French sailors for every foreigner on French merchant navy ships)

• Indirect discrimination (this is where domestic law create distinctions to affect migrant workers more than nationals as in Scholz where a German woman applied for a job in Italy but the selection board refused to take into account her previous employment in Germany)

• Language requirements (these are subject to a specific exception that is a proportionality test as in the Groener where Dutch lady was refused the role of being a rt teacher for failing the Irish language test, however the Court held that the language requirement was legitimate but disproportionate because she should have been given more time and support to study and pass the test)

In relation to right to equal treatment and non-discrimination, what does it cover for economically active EU workers in terms of conditions of employment as in the cases of Allue’ and Coonan, Clean Car, Kalliope and Koebler? What were the following contexts of these cases, and why were they disproportionate/thrown out?

All of these imperative requirements for rejecting EU workers were thrown out or found disproportionate

• Allue and Connan - length of employment (this case was regarding foreign language assistants having shorter contracts than italians)

• Clean Car - previous residency in host-state (this case was regarding business managers’ previous residency in Austria and this disqualified people with no previous presidency)

• Kalliope - promotion purposes - This was a case of a Greek doctor in Hamburg who did not have his previous medical employment recognised for promotion purposes

• Koebler - This case was regarding Austrian professors receiving no recognition of teaching periods abroad in length of service increments for purposes of pay and promotion

How do events of direct discrimination and indirect discrimination vary when it comes to economically active EU workers? (relating to Article 45(3-4))

In the event of direct discrimination only express treaty exceptions in Art 45(3-4) TFEU can be objected, whereas in the case of indirect discrimination also imperative requirements can be used as a justification.

In relation to right to equal treatment and non-discrimination, what does it cover for economically active EU workers in terms of discrimination in tax and social advantages? As per Article 7(2) Regulation 492/2011 and Even case? (focusing on SOCIAL ADVANTAGES)

Article 7(2) Regulation 492/2011 outlines that EU workers shall enjoy the same social and tax advantages as national workers.

As per the Even case, Social advantages means that it embraces all advantages which, whether or not linked to contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of mere fact that they reside on national territory, and therefore extension to Community workers seems likely to facilitate their mobility within Community.

In relation to right to equal treatment and non-discrimination, what does it cover for economically active EU workers in terms of discrimination in tax and social advantages? How does this relate to the cases of Terhoeve, Pusa and Ritters-Coulais? (focusing on TAXES)

Most cases concern national rules which treat residents and non-residents differently or involve some ‘barrier to exit’ by penalising own nationals for choosing to work or reside abroad (as compared to treatment of own nationals who remain working within national territory).

• Terhoeve → Higher social security contributions for those who work part of year in another MS

• Pusa → Higher pension taxes for Finnish nationals who choose to retire in Spain

• Ritter-Coulais → Cross boarder commuters living in France but working in Germany were penalised because they could not deduct French house expenses from their German tax return.

Once social advantage has been identified (faciliating integration into the host MS), the principle of equal treatment applies to outlaw both direct and indirect discrimination on grounds of nationality, how is this shown in the cases of Maria Martinez Sala, Geven, Commission v UK? (part 1)

• Maria Martinez Sala → A spanish citizen had a child in Germany, he wished to obtain a discretionary childbirth loan and the German government was concerned regarding the baby not being of German ethnicity. The outcome was that the non-contributory family allowance was justified on the basis of Sala having been granted residency under German law and non-discrimination under Article 18 applied.

• Geven → It is possible to restrict child benefits to EU nationals who have a ‘real link’ to the host MS

• Commission v UK → In relation to child benefits, it is possible to restrict the EU citizen by making sure EU nationals fulfil residency conditions not required for nationals, the ECJ concluded this was indirect discrimination which can be justified by imperative requirements, such as the need to protect finances of member state.

Once social advantage has been identified (faciliating integration into the host MS), the principle of equal treatment applies to outlaw both direct and indirect discrimination on grounds of nationality, how is this shown in the cases of Garcia Avello, James Wood and Hendrix? (part 2)

• Garcia Avello → A spanish couple with a double-barrelled came to Belgium, Belgium has strict rules on only one singular last name, they had a spanish passport with both names and belgium one with only one name - it was a hindrance for their children and for the belgians to change their law to accept double-barrel names which occurred. This case shows host-state citizens are treated differently, such as belgian civilians not being allowed to change their name, but other travellers can - garcia vello were joint nationals of belgium and spain. Therefore, they have a right to a surname.

• James Wood → The claimant was a British citizen, but had a French wife and French children who were subject to theft, however James wood being a british citizen was not compensated for being a victim of crime on the train/transportation. However, it was concluded that James Wood could be compensated for being a victim of a crime.

• Hendrix → Mr. Hendrix was a Dutch national with disability, who was receiving a special non-contributory benefit in the Netherlands and when he moved to Belgium while continuing to work part-time in the Netherlands, the Dutch authority terminated his benefit based on a "residence condition" that required the recipient to reside in the Netherlands. The ECJ ruled that while a Member State may generally restrict such benefits to residents, such a restriction cannot be absolute if it infringes upon the fundamental right of a worker to move freely, and that proportionality should be exercised by national authorities to assess whether the removal of the benefit disproportionately affects the worker’s ability to remain employed in the host country as an EU migrant worker.

Once social advantage has been identified (faciliating integration into the host MS), the principle of equal treatment applies to outlaw both direct and indirect discrimination on grounds of nationality, how is this shown in the cases of Teixeira, Ibrahim, Jobcenter Krefeld v JD and Collins? (part 3)

These following cases focus on children’s education and rights of the carer -

• Teixeira → Mrs. Teixeira, a Portuguese national, worked in the UK but later ceased working. She sought housing assistance from the London Borough of Lambeth for her child, who was enrolled in education in the UK. The local authority denied this, arguing she had no right to reside because she was no longer a worker. The primary carer of such a child—even if they are not a worker themselves or have stopped working—has a corresponding "derivative" right of residence in the host state to ensure the child can complete their studies. The child's right to education is not dependent on the parent being a worker at the exact time the child starts studies; it is sufficient that the parent was a migrant worker in that state at some point during the child's education.

• Ibrahim → Ms. Ibrahim, a Somali national, was married to a Danish national who had worked in the UK but later ceased working and left the country. Ms. Ibrahim remained in the UK with their four children (who were EU citizens, having Danish nationality) and relied entirely on social assistance. The Court ruled that children of an EU citizen who has worked in a host Member State (like the UK) have a right to reside there to attend school, even if the worker parent has left. The Court further ruled that the parent who is the primary carer for these children, regardless of the carer's own nationality (non-EU), has a right to reside in that Member State to ensure the children can exercise their right to education. Therefore, it was dependent on the parent being self-sufficient, provided the children are in education and one parent previously worked in that state.

• Jobcenter Krefeld v JD → JD lived in Germany from 2013, with children attending school. He worked periodically, becoming unemployed between June 2017 and Jan 2018, though he found work again later. The Jobcenter stopped his social benefits (subsistence payments) on the grounds that he was no longer a "worker" but a "jobseeker”. The CJEU concluded that children of a former EU migrant worker who are in education have a right to reside in the host state to complete their studies. The parent acting as primary carer (a "Teixeira carer") shares this right.

• Collins → In relation to job-seeker allowances: in principle, non-economically active citizens are not entitled to access national social benefits, but the Court extended this entitlement to job-seekers only insofar as the allowances ‘facilitate access to employment.

Once social advantage has been identified (faciliating integration into the host MS), how are economically active EU workers protected in terms of discrimination in market access, how does this relate to Article 45 TFEU and in Metock. Bosman, Van Lent and Volker Graff?

The Court has emphasized that Article 45 TFEU prohibits not only discrimination but also restrictions or obstacles which are non-discriminatory but which none the less interfere with market access.

4 points must be noted though -

1. The Court tends to frame the discourse in terms ‘hindrances to mobility’ having a dissuasive effect on workers moving, such as the tax case-law or difficulties in family reunification as in Metock

2. In Bosman, it was outlined the restriction still directly affected players’ access to the employment market in other MS, and impedes on freedom of movement of workers

3. In Van Lent, the court found a ‘hindrance to mobility’ against cross border workers who got a vehicle assigned to them by their employer and wanted to keep it registered in their State of employment instead of their state of residence.

4. However … in Volker Graff, an Austrian worker complains that rules which mean that he is not compensated when he leaves his employment voluntarily (in contrast with dismissal) deter him from going to work in another Member State. Court found effect of the legislation “too uncertain and indirect”.

What are the other advantages of EU worker status - access to education as per Article 7(3) of Regulation 492/201, and how does this relate to Gravier and Blaizot? And Article 7(3)(d) CRD for involuntarily unemployed EU workers?

Article 7(3) of Regulation 492/201 outlines that that economically active EU workers will have the same right and conditions as national works and have access to training in vocational schools and retraining centres. HOWEVER … as per Article 7(3)(d) CRD outlines if someone is involuntarily unemployed, the retention of status of worker shall require training RELATING to previous employment

• Gravier → Provided a broad definition of vocational training as ‘any form of education which prepares for a qualification for a particular profession, trade or employment’

• Blaziot → University education is included in the right to access to vocational training, therefore there is no different fees that can be charged to EU migrant workers

How has the rights to education of economically active EU citizens been extended to economically inactive citizens as per Grzelcyzk?

Context → Rudy Grzelczyk was French, studying in Belgium, and supporting himself for 3 years of study. He applied for a minimum income, or "minimex" to fund the fourth and final year from CPAS. He was refused for not being Belgian.

Outcome → The Court of Justice of the European Union (CJEU) ruled that EU citizens lawfully residing in another Member State are entitled to non-discriminatory access to social benefits, such as a minimum subsistence allowance (minimex). The court established that Union citizenship is the "fundamental status" of nationals, prohibiting discrimination based on nationality for economically inactive students. The court held that there is a "certain degree of financial solidarity" between host Member States and EU citizens Belgium could not refuse a student "minimex" benefit based solely on the applicant being a French national rather than a Belgian national.

What are the other advantages of EU worker status - family members, right to family reunification as per Article 2 Directive 2004/38/EC, and what does Article 2 entail in terms of defining ‘family member’, other dependants and whether these dependants are EU nationals or not?

As per Article 2 Directive 2004/38/EC, ‘family member’ is defined as ‘Family member’ means -

1. The spouse;

2. The partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage

3. The direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

4. The dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Art. 3.2 (a) & (b) - MS should facilitate entry and residence of any other dependants either because economically dependent or dependants on health grounds as well as a partner in a durable relationship duly attested. If MS decide to refuse entry decision must be justified.

EU law grants rights to family members whether or not themselves EU nationals.

What are the other advantages of EU worker status - family members, right to family reunification as per Article 2 Directive 2004/38/EC, and what is the prominent case law regarding this as Diatta v Land Berlin, Metock, Banger v UK, Coman, Pancharevo and Singh et al? (FOCUSING ON SPOUSES)

• Diatta v Land Berlin → Includes seperated and divorced couples, alongside this lack of cohabitation does not stop family reunification rights

• Metock → The immigration status of the TCN spouse is irrelevant - even if they are subject to a deportation order when they marry the EU worker/citizen, they can no longer be deported and must be granted family reunification rights

• Banger v UK → This case focuses on family member rules apply to ‘returning migrants’, and it was concluded that legal return to a home MS can only occur with family members from third countries if their residence in the host MS was ‘genuine’ under the requirements set out in Article 7 CD 2004 (if they only ‘visited’ or stayed for less than 3 months, the stay is not genuine)

• Coman → Same sex non-EU spouse recognition for purposes of FM, even if MS does not recognise same sex marriage - as long as marriage is validly contracted in another MS.

• Pancharevo → Right of same-sex parents recognised by host MS as parents to have an identity document issued for their child by home MS for purposes of FM but also includes right of the child of same-sex parents recognised host MS to have an identity document issued by state of origin for the purposes of FM even if state of origin/home MS does not recognise two ‘mothers’ as parents and will not issue birth certificates

• Singh et al → Non-EU spouses only maintain right to residence if married for at least three years and 1 year of residence in host MS as per Article 13(2) CD and divorce must happen before spouse leaves host MS.

What are the other advantages of EU worker status - family members, right to family reunification as per Article 2 Directive 2004/38/EC, and what is the prominent case law regarding this as Rahman, Lebon, O and S and Pancharevo? (FOCUSING ON DEPENDANTS/DESCENDENTS)

• Rahman → Bangladeshi national married to Irish national working in the UK applied for dependant family permits for his brother, half-brother and nephew. The UK refused. The ECJ concluded that the MS need only to ‘justify its reasons’. Therefore, for states that it was discretionary, that states could refuse unification especially if they dont believe there is a relationship of dependency.

• Lebon → ‘Dependency’ is a question of fact, and the reasons for it are irrelevant.

• O and S → There is no need for blood link between parents (who have custody) and the children in order to obtain a residence permit.

• Pancharevo → Right of the child of the same-sex parnets recognised by host MS to have an identity document issued by state of origin for purposes of FM even if state of origin does not recognise two mothers as parents and will not issue a birth certificate.

What is the material scope of FMW (free movement of workers) - purely internal situations? And how does Saunders relate to this contextually and outcome?

Wholly internal situations – where all elements of case are purely internal to single Member State – remain IN PRINCIPLE outside the ambit of Treaty rules on free movement for persons.

• Saunders → Ms. Saunders, a British national, was given a probation order prohibiting her from returning to her home area in England after a criminal conviction. She claimed this breached her right to freedom of movement. The Court clarified that if a situation is confined in all respects within a single Member State, it is a "wholly domestic situation". The CJEU concluded that the Court clarified that if a situation is confined in all respects within a single Member State, it is a "wholly domestic situation” and EU free movement provisions cannot be applied to a member state's application of national law regarding its own nationals if that situation does not relate to the cross-border exercise of economic rights.

What instances of direct discrimination caused by domestic rules and regulations are considered a breach of EU FMP if they entail the two following?

• Application of blatant criterion of nationality which results in EU nationals being treated less favourably than their own nationals as in French Seamen

• Direct discrimination can be justified (if at all) only by express derogation provided for under Treaty in Article 45 TFEU

What instances of indirect discrimination caused by domestic rules and regulations are considered a breach of EU FMP if they entail the three following?

1. Application of prima facie neutral criterion which in fact imposes greater burden on EU nationals as shown in Groener

2. Indirect discrimination can be justified (if at all) not only by express derogations provided under Treaty but also by test of ‘objective justification’ developed under case-law, whereby relevant measure

   • pursues aim compatible with treaty, and justified by pressing reasons of public interest (imperative requirement) AND

   • is both sufficient and necessary to achieve its objective (principle of proportionality). The CJEU will test very rigoriously if the MS could have achieved same objective by means less restrictive of free movement rights

3. obstables/hindrance to free movement having dissuasive effect as in Bosman, Metock, Terhoeve (and have the same justifications as indirect effect)

In summary, what are the treaty based exception to discrimination in employment?

FMP Employment in the public sector as per Article 45(4) TFEU

This means that Article 45(4) can only ever justify discrimination as regards to access to, but never as regards conditions of employment within public service as per Sotgiu case.

Commission v Belgium discusses the treaty exception to discrimination in employment - employment in public service, what is the context and outcome?

Context → Belgium maintained that in order to check the rail, you have to be Belgium because it was a public service job and other jobs, such as TV broadcasters, utility. In response to this, the court comes up with a dual requirement which is that the job has to entail both the direct or indirect participation and public policy, so exercise of public powers conferred by law in the interests of the state, and it has to entail a special relationship of allegiance to the state. So you'll have to satisfy both of these criteria.

Outcome → This case removed from the scope of the treaty certain public service posts which related to ‘direct or indirect participation in exercise of powers conferred by public law […] designed to safeguard general interests of the state […] existence of special relationship of allegiance to the state […] bodies such as the armed forces, the police, judiciary, tax authorities and diplomatic corps”

What do the following cases of Commission v France, Commission v Spain and Anker demonstrate about the scope of posts covered by Article 45(4) TFEU being narrowly construed, and what can/can’t be qualified for public service exception?

• Commission v France → Nurses in public hospitals

• Commission v Spain → Generality of posts in sectors such as health, education, postal services, telecommunications, radio and television broadcasting, water, gas and electricity supplies

• Anker → Ankur is a captain in a ship who occasionally exercises public powers, because the role of captain could keep you in your room until they hand you over to the police when they arrive in port. The issue was whether this job could be reserved to nationals because it involves a entails the exercise of public powers? The court said no, concluding that it's too occasional because the main job of captain of ship is not to exercise to public orders to pilot the ship. Therefore, it's too occasional to be a public service and the participation of public power must be on a regular basis, representing more than very minor part of stakeholder activities.

What does refusal of entry/residence or expulsion on the grounds of public policy, security and health as per Article 45(3) TEU entail, and how must it be construed?

Refusal of worker’s entry into or expulsion of worker from host state can be justified ONLY by reference to express derogations provided for under the Treaty.

In particular, Article 45(3) TEU outlines the right to free movement is subject to limitations based on grounds of public policy, security and health.

Article 45(3) TEU must be strictly construed, and that the exceptions to FMW must be proportionate and objectively justifiable.

What does Article 27(2) Directive 2004/38 mean in relation to refusal of entry/residence or expulsion on grounds of public policy, security and health?

The first principle is that any reason to refuse entry or expel a national has to be exclusively based on their own conduct.

And this personal conduct must repressent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

How are the following case law of Bouchereau, Calfa, Jipa, Van Dyun and Mary Carpenter and Olazabal relevant to the application of the two principles in Article 27(2) Directive 2004/38 which relate to the refusal of entry/residence or expulsion on grounds of public policy, security and health?

• Bouchereau → Bouchereau had a conviction for personal possession drugs and he was subsequently denied entry into the host state. However, the ECJ concluded that the state can accept that they’re a criminal but that level of criminality is low and not a threat to a fundamrntal interest of society, therefore you have to balance proportionally the possibility of expelling again, preventative measures, not acceptable. Therefore, the threat must also affect some fundamental interest of society, not merely break the law.

• Calfa → There was a ten year re-entry ban on any national convicted of any crime in Greece. The ECJ considered that disproportionate, because it was not considerate to the crime that the person had committed, and the host state may not deport a EU national as part of general preventative programme for deterring others.

• Jipa → Jipa had an exit ban because they were a repeat offender. Therefore, due to being convicted by another member state and once returned, the home MS imposed an exit ban to stop them from re-offending abroad. The ECJ said only if it affects the general interest of society, and that states are not allowed to discriminate between their own nationals and foreign nationals. Therefore, Home MS of deported EU national can ban its own citizen from exiting in order to comply with travel ban imposed by another MS on grounds of illegal residence, however Jipa creates an exception ‘only to the extent that his personal conduct constitutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society’

• Van Dyun → It was concluded that past membership of organisations attracting official displeasure was irrelevant, however host MS may take into account present membership insofar as this reflects participation of organisation and identification with its aims.

• Mary Carpenter → She arrived, overstayed on a visa since she was trying to stay in Britain, married to a British husband and Mr. Carpenter sold encyclopaedias across Europe, therefore he provided service and therefore EU law was applicable. As a result, Mary could apply for a right to family renumeration with her husband, however Mary’s actions are considered not of a model citizen since she overstayed and is an intended type of person to exclude. The ECJ concluded that when derogating from FMP, MS must act in a manner consistent with the protection of fundamental rights guaranteed within EU law.

• Olazabal → This is a case of territorial scope of refusal, he was a Spanish citizen who have involvement in the Basque resistance movement and he had escaped to France. France was happy to keep him, however he couldn’t live anywhere near the Basque border. The ECJ concluded that this should have not been a lawful restriction of its movement, and proportionally decided it was acceptable because France would have been within their rights to expel Mr. Gonzalez because he feld the country, therefore it was a fundamental interest of society, since his participation in the Basque movement was considered terrorism and therefore, France took a lesser measure than returned, expelling him, this was allowed by the ECJ.

What is meant that the scope of derogation has progressively been reduced according to length of stay as per Article 28 Directive 2004/38?

• For stays up to 5 years, Article 27 applies

• Between 5-10 years of residence in the host MS, expulsion is only possible for serious grounds of public policy (the period of 10 years has in principle to be continuous as per MG case, and periods in prison do not count as legal residence under Article 7(1) CD requirements)

• After 10 years, expulsion is imperative grounds (as per Tsakouridis case, drug trafficking qualified as an imperative ground and as per PI, crime of sexual exploitation of children was an imperative ground)

• In order to benefit from increase protection, the 5 or 10 year residence msut be complied with the conditions set out in Article 7(1) Directive 2004/38