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42 Cards in this Set

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Does Article 45 apply when a worker has been in a non-MS country?

Yes so long as there is a sufficiently close link in int he employment relationship and in law, Peterson

The prohibition of discrimination in work applies for states and also individuals

Angonese

The court has the ultimate say in what is the definition of a worker

Hoekstra

Article 45 can be relied on by an employer

Clean Car Autoservice

Article 45 can be relied on by a relevant third party

ITC Innovative Technology Centre

Why are part time workers recognised even if they earn below the minimum wage?

Because the treaty is aimed at encouraging people to move and seek work to improve their standard of living, Levin

When does treaty protection apply to part time work?

Work that is for a genuine economic activity unless it is marginal or ancillary, Levin

Why is it important for part time work to be acknowledged?

Because of the dependence on part time work by women the elderly and the disabled, AG Slynn

If you are working it does not matter how you may supplement your income

Kempf

What are the three defining features of work?

1. For a certain period of time


2. Under supervision


3. For renumeration


Lawrie Blum

Not being paid under conventional ways does not mean that you are not necessarily 'renumerated'

Steymann

Drug rehabilitation is not an economic purpose

Bettray

The activity must be real and genuine AND form part of the normal labour market

Trojani

Taking work that is to qualify you for an educational course does not entitle you to having the same social advantages as a worker

Brown

What are the rights of those that are seeking work?

They are protected under 45 but they do not have full status and all the protection, Antonissen

For job seekers they cannot enjoin certain rights such as unemployment benefits because they have never participated in the employment market

Lebon

You can fall under article 45 through indirect discrimination for example if an employer requires qualifications that you have already achieved elsewhere

Commission v Portugal

A language requirement may be indirect discrimination but it may be proportionate if there is a good reason such as the Irish language

Groener

Even if a measure applies equally to movement within the EU and with internationals it will still be against article 45 because it is hinders movement

Bosman

States cannot offer greater benefits at home so as to discourage citizens to move

Terhoeve

Article 45 cannot apply in a pruely internal sitaution but having worked in another MS that somehow effects your current claim is enough

Terhoeve

Why must the public service exception be construed narrowly?

Because it takes up a large part of the industry and is especially useful in times of depression, Ag Mancini

What are the two requirements for something to be seen to be in the public service?

1. Position must involve the participation in the exercise of powers given by public law


2. Must entail duties designed to safeguard the interests of the state.


Commission v Belgium

Giving advice on matters of public policy is a public service, however just because you can potentially do so does not make this a public position

Commission v Italy

To qualify for a public service exception you have to excercise the powers on a regular basis and cannot be merely a minor part of the activiities

French Merchant Ships

What is included under article 7(2) of the regulation?

Includes all social and tax advantages, Cristini

The purpose of the German childcare grant was primarily to help people work and afford to have children

Reina

A benefit based on recognition of time away due to war was not available to people from over MSs for a legitimate reason

Even

Can a child of a worker still qualify if they are over 21?

Yes, and even if they are not dependant according to Gaal, it is however assumed that the children must have lived in that state with their period for some time before though

What is the relevence of having a conviction in terms of expulsion under directive 2004/38?

They in themselves do not constitute a reason but can be evidence of posing a present threat, Santillo

What is the nature of 'imperative grounds' and how is it to be measured?

They are considerably stricter than serious grounds and they are measured between the exceptional damage against the intergration of that person into the state, Tsakouridis

For direct discrimination, you can only justify it by express derogations in article 45.3-4 of the TFEU

French Merchant Ships

For indirect discrimination you can rely on objective justifications

O'Flynn

Why can jobseekers be classed under workers?

Because a strict interpretation of the treaty would jeopardize the actual chances that a national of a member state who is seeking employment will find it in another member state and it would make the provision ineffective. Antonissen

What is the nature of the right of the job seeker to stay?

this is up to the national courts but enough time must be given so that they can actually practice their right to look for a job. Six months is said to be enough. Antonissen

jobseekers have no entitlement to tax and social advantages but they can seek jobseekers allowance if they can show that they are genuinely linked to the employment market of that sector

Collins

The article applies to conditions at work not only in direct and indirect discrimination in obtaining work

Kalliope

What counts as education given to workers themselves?

Any form of education that prepare for a particular profession trade or investment and it may contain some element of general education, Gravier

University is claimable for workers themselves

Blaizot

For expulsion the threat must be to some fundamental interest to society, breaking the law is not necessarily enough

Bouchereau

You can not expel someone for doing things that are not combated when it comes to your own nationals also

Adoui and Cornuaille

How do you balance the proportionality for expulsion?

The seriousness of the offence versus the the personal circumstances of the person, Orfanopoulos