Eu Ws5 Free Movement Of Persons - Workers

Front 1

Directive 2004/38 elaborates on TFEU 45, covering union citizens

Back 1

article 3(1)

Front 2

Drug addict on a rehab scheme put on for him is not a worker

Back 2

Bettray

Front 3

Unpaid worker for a religious community if:

Back 3

Steymann

– Contributes to economic activity of community
– Receives benefit for his contribution, ie indirect

Front 4

A part time worker is still a worker, even if he supplements his income with state benefits or other lawful sources

Back 4

Kempf

Front 5

Part-time workers also count as long as:

Back 5

Levin v Staatssecretaris

– “effective and genuine”
– not on such a small scale as to be marginal and ancilliary

Front 6

All union citizens have a right of residence for three months

Back 6

Dir. 2004/38, 6(1)

Front 7

If you can provide evidence you are looking for work and have a genuine chance, you may not be expelled

Back 7

Dir. 2004/38, 14(4)(b)

Front 8

Someone looking for work also comes under the scope of TFEU 45

Back 8

Ex p Antonissen

Front 9

A worker is a person who:
– Performs services for another person
– Under the control of that other person
– receives remuneration

Back 9

Lawrie Blum v land Baden Wurtttemburg

Front 10

Free movement of workers shall be secured within the community

Back 10

TFEU 45(1)

Front 11

Migrant workers must not suffer discrimination based on nationality as regards employment, remuneration and other conditions of work

Back 11

TFEU 45(2)

Front 12

National law where nationality claimed decisive in deciding nationality

Back 12

Micheletti

Front 13

2004/38 Article 2 "family member"?

Back 13

– Spouse
– Registered partner
– Direct descendants who are under 21 or dependants, plus those of spouse/partner
– Direct dependant relatives in the ascending line plus those of spouse/partner

Front 14

2004/38, 3(2) others with entry/residence right?

Back 14

Other individuals with with entry/residence rights
– Other family members who are part of household or dependent on one with primary right
– Partner with whom union member has a stable and durable relationship, duly attested

Front 15

Right of exit

Back 15

Article 4

Front 16

Right of entry (check for visa/passport requirements) subject to document requirements

Back 16

2004/38 Article 5

Front 17

2004/38 Right of residence

Back 17

Rights of residence:
Right of residence for up to three months
6(1) Don't have to be pursuing economic activity
6(2) Including non-Union family members

Front 18

RoR for > 3 months if

Back 18

2004/38, article 7
– Worker/self-employed
– Sufficient resources + sickness insurance
– Students declaring sufficient resources and having sickness insurance
– Non-union family member accompanying/joining a union citizen satisfying one of the above

Front 19

Permanent residence after 5 years continuous legal residence

Back 19

2004/38, Article 16

Front 20

Permanent residence prior to 5 years if retired or permanently incapable of work

Back 20

2004/38, 17-18

Front 21

Where no kids, departure to home MS will mean non Union spouse will lose RoR in host MS (only persuasive in other jurisdictions)

Back 21

Sandhu

Front 22

Citizen's death/departure shall not affect RoR of Union family members

Back 22

2004/38, 12(1)

Front 23

If family members are non-union, must live in MS for 1 year prior to death

Back 23

2004/38, 12(2)

Front 24

Departure will not affect RoR of children/parent with custody (if kids at school long term)

Back 24

2004/38, 12(3)

Front 25

Returning migrant workers can bring non-Union spouses with them

Back 25

Surinder Singh

Front 26

Divorce will not affect RoR of Union family members

Back 26

2004/38, 13(1)

Front 27

Divorce: If non-Union family, not affected provided:
– marriage lasted 3 years prior to divorce, one in host state
– Spouse/partner has custody of Union citizen's children
– Suffered difficult circumstances e.g. abuse
– Partner has right of access to a minor child (still subject to 12(2))
– Still need work/self-support

Back 27

2004/38, 13(2)

– marriage lasted 3 years prior to divorce, one in host state
– Spouse/partner has custody of Union citizen's children
– Suffered difficult circumstances e.g. abuse
– Partner has right of access to a minor child (still subject to 12(2))
– Still need work/self-support

Front 28

Senegalese woman married Frenchman and moved to Germany
– Don't have to leave if just separated
– No need for spouse to live in same accommodation as worker

Back 28

Diatta

Front 29

Documents for exit:

Back 29

2004/38, 4

– Union, ID/Passport; non-Union family, passport

Front 30

Document for RoR < 3 months

Back 30

2004/38, 6

RoR < 3 months; valid ID or passport only (for all)

Front 31

Document for RoR .> 3 months

Back 31

2004/38, 8

RoR > 3 months; registration may be required, with certificate

Front 32

Permanent residence docs

Back 32

2004/38, 18-20

Front 33

Reg 1612/68, Article 1

Back 33

The right to take up employment in foreign MS with same priority as MS nationals

Front 34

Reg 1612/68, Article 3

Back 34

Only conditions of linguistic knowledge may bar the regulations from applying

Front 35

Reg 1612/68, Article 5

Back 35

Must receive the same benefits as nationals of the MS

Front 36

Reg 1612/68, Article 6

Back 36

Recruitment must have no discriminatory tests unless undertaken by all staff

Front 37

Reg 1612/68, Article 7

Back 37

No discrimination on nationality re conditions/remuneration/hours of work, including social advantages

Front 38

Social advantages could include “large family fare reduction card” and discrimination here is unlawful.

Back 38

Cristini v SNCF

Front 39

Family members of a Union citizen have the right to take up employment or self-employment regardless of nationality

Back 39

2004/38, 23

Front 40

Social security rights:
EU migrant workers have right to same social security benefits as nationals of host state; contributions to be treated the same too.

Back 40

Regulation 1408/71

Front 41

TFEU Exceptions in 45(3)

Back 41

Very narrowly interpreted
– Public policy (more common)
– Public security (hard)
– Public health

Front 42

Direct discrimination can only be justified by TFEU treaty exceptions (very narrowly interpreted)

Back 42

Commission v France

Front 43

2004/38 restrictions on treaty exceptions for direct discrimination

Back 43

Article 27 confirms grounds in 45(3) but:
– Not for economic ends
– Proportionality; no more than necessary for the end
– Based exclusively on conduct of the individual

Front 44

Past convictions only relevant if a present and serious threat

Back 44

R v Bouchereu

Front 45

Can base on association with groups if “socially harmful” (Scientologist)

Back 45

Van Duyn

Front 46

Previous convictions only OK insofar as showing reoffending

Back 46

R v Bouchereu

Front 47

Prior criminal convictions not sufficient “in themselves”

Back 47

2004/38, 27(2)

Front 48

For public health, only “epidemic potential” (by WHO), or subject to controls for member state nationals

Back 48

2004/38, 29(1)

Front 49

Cannot use conduct not repressed against member states own nationals

Back 49

Adouie and Cornuaille v Belgian State

Front 50

Employment in public service

Back 50

TFEU 45(4) - Rights do not apply in public service
---- Exercise of powers conferred by public law
---- Safeguarding the interests of the state

Front 51

"Public service" very narrowly defined

Back 51

Commission v Belgium

Front 52

Cassis approach for movement of people:

Back 52

Bosman
Measures justified if they:
– Pursue a legitimate aim compatible with the treaty and justified by pressing reasons of public interest.

Front 53

Proportionality for discrimination

Back 53

Bosman

- ensure it achieves aim in question
- No more than necessary