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Free Movement Of Workers Notes

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Free Movement Of Workers Revision

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Revision: EU

Article 7A SEA 1986: aimed for elimination of all border controls - opposition from UK/Ireland To whom does 'free movement' apply?

Directive 2004/38 came into force 2006: right to move to all EU Citizens - workers/selfemploy/retired/students

1992: concept of citizenship introduced by Maastricht revision of EC Treaty: A17 - now A20 TFEU

A21(1) TFEU: 'Every citizen of the Union should have the right to move freely'

Directive 2004/38: shift from economic to social: restricts MS ability to refuse citizenship

Free movement of workers

One of the 4 essential freedoms on the EU internal market - A3(2) TOTEU


A26 TFEU - internal market = area w/o internal frontiers - free movement of goods, persons etc.


A18 -principle of non-discrimination on the basis of nationality

A45 TFEU: Key Provision relating to workers Key Secondary Legislation

1. Regulation 492/2011: right of equal treatment, residence and specific rights enjoyed by workers/family - consolidated and replaced by regulation 1612/68 + 2 others

2. Directive 2004/38: rights of entry/residence - applies to all individuals holding MS nationality

3. Directive 2005/26 - recognition of professional qualifications - streamlined 15 directives Definition of a "worker"

Remain longer than 3 months - must show not economic burden (economically active/sufficient resources)

Worker: No definition in EC treaty - CJ - will be defined by national law but given a union meaning

Hoekstra (nee Unger) v Besturr der Bedrifsvereniging - CJ held it had ultimate authority to define worker

An employment relationship: Lawrie-Blum - 3 essential characteristics: trainee teacher fulfilled all 3 a) Perform services b) For and under direction of another, and c) In return for remuneration An effective and genuine activity - excludes marginal contributions - Levin v Staatssecretaris van Justitie : part time

Kempf v Staatssecretaris van Justitie: economic activity cannot be excluded even if insufficient to meet needs

What constitutes economic activity?
Lawrie Blum: providing services - trainee teacher Walgrave & Koch - pacer in cycling race Union Royal Belge des Societes de Football Association ASBL v Jean Marc Bosman: professional sports counts 1

Revision: EU


Steymann v Staatssecretaris: member of religious community - plumbing etc. = genuine economic activity

Bettray v Staatsecretaris van Justitie: compulsory drug rehabilitation - work was not genuine economic activity

Job Seekers: A45 only refers to those who have secured work - but CJ has extended this to those seeking work

Procurereur du Roi v Royer: job seekers granted rights of entry/residence for a period before lawful deportation

R v Immigration Tribunal, ex parte Antoissen: CJ held that a person is entitled to remain beyond and period stipulated in national legislation if able to show they are economically active, making a genuine effort to find or work or had realistic prospect of obtaining it

Unlike workers - JS have no entitlement to social benefits pending commencement of work: Antonissen confirmed limitations on benefits for those unable to find work

Regulation 1408/71 and 2001/83 - payment of unemployment benefits for up to 3 months but not after this

Regulation 492/2011: JS not able to claim other benefits available to a person with a job

Collins v Secretary of State for Work and Pensions: right to restrict social benefits granted to host JS

What can workers bring with them? Definition of family members in D2004/38 - A2(2)

Extension to include registered partners and partner's descendents and ascendants : taking into account Reed - but only a handful of MS recognise registered partnerships - only acquire rights which are granted in home/host

"beneficiaries" under A3: includes members outside A2(2) who are dependants/members of the household/whose health problems require care of such a person or the partner with whom EU citizen has 'durable relationship, duly attested'

"Dependant" in Jia v Migrationiverket - in need of 'material support in order to meet their essential needs'

Reed: Cohabitees/un-married partners - A7(2) because Dutch law allowed nationals to live with nonnational, non-martial partners


Rights remain unaffected - Diatta v land Berlin - Senegalese national + French spouse in Germany


But contrast with R v Secretary for State, ex parte Sandhu: Indian national married German living in UK - Sandhu no longer a qualifying spouse under EU law


Directive 2004/38 - detailed provisions:


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