Free Movement of People

Article 49-55 TFEU

free movement of establishment (Self-employed)

Article 55-63 TFEU

free movement of services

Article 18-25 TFEU

free movement of citizens of the EU

Article 41(1)

EU charter of fundamental rights

Article 45 - 48 TFEU

free movement of workers

labour mobility

those who move to exercise economic mobility

non-economically active mobility

family-members, job-seekers, students, pensioners

why is seeing people as factors of production a reason to let people move in the EU

- there are areas where there is a lot of labour so it is cheap and where there is little labour so it is expensive

- allowing people to move across the EU leads to an equalisation of labour prices

proof that the labour argument failed

there is still a more than 700% difference in wages across the EU

average earning in Bulgaria is 11k and 50k in Luxembourg

mobility in the EU stats

about 4% of the working-age population in the EU was mobile in 2023

4 reasons why mobility is low

language - multiple languages spoken in EU, harder to be mobile

family

economics - loss of entitlements to social benefits

MS resistance - different barriers to exiting one's countries

what does it mean to say Art 21, 45, 49 and 56 TFEU are mutually exclusive

If a claimant claims free movement rights under movement of workers they cannot also claim breach of EU law under provision of services

common principles of Art 21, 45, 49 and 56 TFEU

- They all have vertical direct effect (enforced against states)

- Only the free movement of workers has a horizontal direct effect (enforced against employers)

What is the 3-fold test for when EU law applies

1. Personal scope

2. Material scope

3. Territorial scope

personal scope

Does the person have the nationality of a member state? If yes, they are a EU citizen and are under the personal scope of EU law

material scope

What are the rights the migrant is claiming? Is it regulated by EU law?

territorial scope

Has the individual moved across the EU?

Breach of EU law

Once you decide EU law applies, you have to decide whether there has been a breach

Art 18 TFEU

Prohibition of discrimination based on nationality → 'Non-discrimination test'

direct discrimination

a provision which directly affects migrants ability to move freely

examples of direct discrimination

- Reyners case: you could only be a Belgian lawyer if you were Belgian

French Merchant Seamen: for every non-French merchant, you need 4 French merchants

indirect discrimination

a provision of national law that is intrinsically liable to affect migrants more than nationals, and there is a risk that it will put migrants at a disadvantage

O'Flynn case

facts: laws meant that if you died in the UK while working the govt would pay a % per mile of the cost of transporting your body, O'Flynn was only paid to the border as the UK did not have maps for Ireland

decision: non-UK students being paid less was indirectly discriminating

how do you overcome indirect discrimination

objective justifications (arguments of public policy)

what is the test for discrimination

- whether the breach is an obstacle/hindrance to free movement

- Is the rule likely to make the person think twice about moving, discourage them from moving, make them not want to move or negatively impact them if they move?

Bosman Case

facts: belgian footballer had to pay a fine if he was going to play for a French football team

decision: obstacle to free movement

What is the test for whether the rule hinders residency

would non-mobile citizens who have never left their own state be forced to leave the territory of the EU altogether

Treaty of Rome

- established when you can refuse entry or expel an EU citizen

- Regulation on workers and what rights they have

Maastricht Treaty

- general right of residence → EU citizenship

- residence rights for ex-employees/self-employed

- residence rights for students

EU Citizenship Directive

regulates all principles of free movements

EU Citizenship Direct Art 4

right of exit - quoted by the courts for breach whenever MS penalise their own citizens for working in another MS or try prevent them from leaving, as they typically do to pensioners

- known as barriers to exit

Koebler Case

facts: Austrian uni refused to recognise professors work experience from when he was working in Germany

decision: This was a barrier to exit

EU citizenship directive Art 5

EU nationals only need a valid ID or passport

Non-EU family members can be required to obtain a visa but they must be issued at the border, free of charge under accelerated procedures

EU citizenship directive Art 6

3 months of free residence upon arrival

EU citizenship directive Art 7 - economically active

- entitled to equal treatment under Article 24 of the directive

- entitled to benefits, tax advantages and social advantages nationals are entitled to

EU citizenship directive Art 7 - non-economically active

waiting period of 5 years:

- must have independent health care and resources so they are not a burden to the host state

- barred from relying on social assistance

- after 5 years acquire legal status of a permanent resident and entitled to equal treatment

Antonissen case

Those looking for work are covered by Art 45 TFEU

- Minimum of 6 months to look for work

EU Citizenship Directive Art 14

forbids the expulsion of citizens as long as they are seeking employment and have a genuine chance of being employed

what reasons can a state refuse entry under Art 45

- public policy

- public security

- public health

who is a worker?

someone who performs services for and under the direction of another for a certain period of time against remuneration

Levin Case

facts: British woman was working in Holland and earning less than the minimum amount to qualify as a worker under Dutch law

decision: she was a worker

What is remuneration?

payment in kind is sufficient for remuneration

Steyman case

facts: handyman was paid with food and lodging

decision: this was enough to be considered remuneration

What is economic activity that can qualify as employment?

- It has to be part of the normal labour market to qualify as work

- Part-time workers are covered by Article 45 even if wages fall below official subsistence level

- zero hour contracts are workers

Kempf case

facts: guitar teacher worked 3/4 hours a week and received beenfits from the state

decision: considered a worker even if he must supplement his income from public funds

what things are not relevant under Art 45?

1. claimant's intentions

2. sphere of employment

3. nature of services

Levin Case - claimants intention

facts: Levin moved for spousal reunification

decision: still considered a worker, intentions are not relevant

Wholly Internal Situations

where all the elements of the case are purely internal to a single MS

Saunders case

facts: British Citizen living in Northern Ireland had some implications with IRA and was ordered to live in England, argued this was against his free movement rights

decision: This was a wholly internal situation and therefore did not count

Regulation 492/11 Art 7

A worker cannot be discriminated in terms of conditions of access to work, conditions of work and they must have the same social and tax advantages

factors which affect access to employment

1. total bans

2. quotas (French Seamen case)

3. indirect discrimination

Commission v Italy - total ban

facts: you could not own a weapon if you were not Italian

decision: barrier to employment as it blocked non-Italians from being security guards

Commission v Italy

facts: British citizen had a degree in English but could not teach in Italy because she needed an Italian degree in English

decision: language requirements are an exception, they are allowed in Art 3

tax

acts as a barrier to exit by penalising own nationals for choosing to work/reside abroad

Pusa case

higher pension taxes for Finnish nationals who retire in Spain

social advantages

any type of advantage which is conferred to someone either because of their status as a worker or by mere virtue of the fact that they are a resident in a country

Commission v UK

child benefits are still paid if the child is in another country, but it is indexed to the cost of living

workers right ot education

equality of treatment with access to training

- vocational training which prepares for any type of job or profession

Rights of family members accompanying the migrant worker

rights of family members are parasitic

- migrant workers are entitled to be accompanied by their family members

- equal treatment applies to them so long as the EU national has the right to equal treatment

Definition of family members Article 2 Citizens Directive 2004

1. spouse

2. civil partnership

3. children under 21 (if they are dependent on parents, no age limit)

4. dependent direct relatives in the ascednign lin e

# any other dependents for economic/health reasons have a right to be considered

Diatta case

There is no need to cohabit to be considered a spouse

Coman case

facts: Coman married a man and went back to Romania, they did not recognise same-sex marriage so they refused to give his husband a visa

decision: for the purposes of free movement, his same-sex marriage must be recognised, even if it is not recognised in Romania

Lebon case

dependency' is a question of fact; the reasons for it are irrelevant

Jia case

evidence of dependency can be adduced by any "appropriate means", however it has to be established in the country of origin

Rahman case

MS can exercise their discretion to impose any requirement relating to the nature and duration of dependence

education and residency rights

Children of migrant workers can stay in the country they have moved to to finish their education

A carer has the right to stay with the child

Jobcentre Krefeld

EU law will always allows individuals to claim dual status - e.g. as a worker and carer for children completing education

Family unity

If you are returning to your home country, you have the right to bring your family you acquired in a member state under the EU principle of family unity

- This applies, even if you are not economically active upon return (Eind case)

O&B case

legal return to a home Member State can only occur with family members from third countries if their residence in the host Member State was 'genuine'

EU Citizenship Directive Art 7

if family members only visited or stayed for less than 3 months, the stay is not genuine

Article 45(4)

right to free movement and non-discrimination does not apply to employment in the public service

how does the court define public service jobs

(1) Involving direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the state

(2) and a special relationship of allegiance to the state

treaty based exeptions

Refusal of an EU citizen's entry into or expulsion from the host state can be justified (if at all) only by reference to express derogations provided for under the Treaty or secondary legislation

Article 45(3) TFEU

the right to free movement is "subject to limitations justified on grounds of 'public policy, public security or public health"

proportionality

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

nationals v foreign nationals

States cannot discriminate in terms of danger assessments between their own nationals and foreign nationals

Adoui and Cornuaille

Belgium allows prostitution and therefore cannot expel French prostitutes

human rights

when derogating from free movement rules, MS mist act in a manner that is consistent with protection of fundamental rights

protection from expulsion

- protection increases according to the time an individual spends in the host country

- Between 5-10 years of residence, expulsion is only possible for serious grounds of public policy

- After 10 years, expulsion is only allowed on imperative grounds

requirements for protection from expulsion

- The period of 10 years has to be continuous

- Years spent in prison do not count for the purposes of legal residence, as they are not integrating into the host state

- exceptions are made for prisons that allow you to work outside/integrate with society