A more recent version of these Free Movement Of Persons 1 Entry Residence notes – written by Cambridge/Bpp/College Of Law students – is available here.
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EU Law: Free Movement of Persons 1 - Entry and Residence Free movement of persons--history
? Original EEC treaty, Treaty of Rome 1957: free movement of persons applied only to the 'economically active' (i.e. workers and selfemployed persons).
? Reg 1612/68 (now Reg 492/2011) provided specific employment, social and educational rights to workers; and certain family members limited rights.
? Early 1990s, extended the scope of persons beyond 'economically active'. Directive 90/364 (those with sufficient resources and sickness insurance); Directive 90/365 (retired previous previously employees or self-employed); Direct 93/96 (students).
? Workers: This now provided for by Article 45 TFEU---freedom of movement for workers.
? Union Citizens: 1992 new concept, found in Maastricht treaty, of a 'union Citizen'. Art 8 TEU (now Articles 20 & 21 TFEU.) Union citizen = all individuals holding nationality of one of the MSs. So need to be economically active---changed dynamics of free movement of persons.
? Directive 2004/38 ('Citizenship Directive'): rules governing free movement of persons. A single directive. Include: detailed rules for rights of entry and residence for Union citizens; elimination of need for Union citizens to obtain a residence card; introduction of a permanent right of residence; greater safeguards for fam members.
? NB Schengen Agreement: abolished internal border controls amongst the signatory MSs, and introduced common visa controls (UK and Ireland not included). Now incorporated into the Treaty of Amsterdam. UK nad Ireland excluded.
? SO, Art 45 TFEU---workers (economically active); Art 20 TFEU
- Union citizens (no need to be econ active). Article 45 TFEU: Free movement of Workers
??? ?Workers who are nationals of a MS
? ?? ? Four paras, Art 45 TFEU:
1. Free movement of workers shall be secured (basic right of movement).
2. Non-discrimination in Employment rights: abolition of discrimination based on nationality between workers of MSs regarding employment, remuneration and conditions of work.
3. Derogations and specific rights.
? Limitations justified on grounds of public policy, public security, public health.
? Rights granted, subject to these limitations: To accept offers of employment; to move freely within territory of MS for this purpose; to stay in a MS for purpose of 1
employment in accordance with the provisions governing the employment of nationals in that State; to remain in the MS after having been employed in that State.
4. Public service exemption (no right for public service worker).
? ?? ? Non-discrimination: Article 45 represents an application, in the specific context of workers, of the general principle in Art 18 TFEU that prohibits any discrimination on basis of nationality.
? ?? ? Art 45 supplemented by secondary legislation: o Regulation 492/2011: confers rights of equal treatment relating to employment, tax and social advantages and access to education, that can be enjoyed by workers &
fam members. It replaced Reg 1612/68 and other regs. o Directive 2004/38: deals with rights of entry & residence of Union citizens (including workers) and fam members. o Secondary legislation buildings upon framework established in Treaties, by conferring additional rights on workers and families.
Economic activities and the scope of Art 45 TFEU
??? ?Scope of Art 45 TFEU interpreted by ECJ by reference to objectives of the EEC originally listed in Art 2 Treaty of Rome. One was promotion of a harmonious development of economic activities.
??? ?So ECJ has long held that Art 45 TFEU applies only in relation to economic activities
??? ?But interpreted broadly.
? ?? ? Walrave & Koch v Association Union Cycliste Internationale (1974) o Worker = (1) Economic activity; (2) having character of gainful employment. o In this case, ECJ held the practice of sport is subject to Art 45 (but only in so far as it constitutes an economic activity having character of gainful employment). o Concerned 2 Dutch nationals, who acted as professional pace makers in motor-paced cycle races. They sought to challenge the rules of the international body regulating such races, on grounds that the rules for the composition of teams discriminated on basis of nationality. o ECJ held: Art 45 TFEU applies to rules of an international sporting federation which were aimed at regulating gainful employment.
? ?? ? Likewise, other professional sports held to apply---activities of professional and semi-professional footballers in gainful employment, held to fall within Art 45 TFEU: o Union Royal Belge des Societes de Football Association ASBL v Jean Marc Bosman (1995).
? ?? ? What is a 'Worker'---a Union definition (Hoekstra)
2 o To obtain full rights under Art 45 TFEU and Reg 492/2011, an individual has to be both a national of a MS and a 'worker'. o Treaties never defined 'worker'. o Hoekstra v Bestuur (1964): held that there is to be an EU meaning of worker. Worker will be given an EU meaning, will have its own definition under EU law---whether a person is a worker or not was not to be defined by national law. So consistent definition across MSs.
? ?? ? Walrave & Koch: (1) economic activity; (2) having character of gainful employment.
? ?? ? (2) An 'employment relationship': 'having character of gainful employment' (Walrave & Koch) o Lawrie-Blum v Land Baden-Wurttemberg (1986) (re trainee teacher in Germany, 11 hrs/week): defines 'employment relationship' as: o (1) performs service; (2) for and under the direction of another; (3) in return for remuneration. o In this case, a British national who went to Germany to train to be a teacher. Passed her teaching exam, and was refused admission to the preparatory service stage of training on ground that she was not a German national. That preparatory service would have involved 11 hours a week teaching at a secondary school, for which she would have been paid. o German law only allowed German nationals to do that training; and German authorities denied that a trainee teacher is a worker, but engaged in educational activity not economic activity. o ECJ: a trainee teacher undergoing the preparatory service stage of training is a worker, as the requirements for an employment relationship are fulfilled. The service is undertaken under the direction & supervision of the school; trainee teacher is required to give lessons; these lessons are a service of some economic value to the school; for which the trainee teacher is paid. o trainee teacher had done the academic training to be a teacher, and now wanted to undertake the training stage in schools. German law only allowed German nationals to do that training. HELD: she was in an employment relationship, so could do the training in schools.
? ?? ? (1) Economic activity: (an 'effective and genuine' economic activity: o Levin v Staatssecretaris van Justitie (1982): (1) only 'effective and genuine' activities; (2) not 'marginal or ancillary'. [[re a chamber maid, working 20 hours/week, under subsistence level]]. o So not an economic activity that is on such a small scale as to be regarded as marginal or ancillary.
3 o Levin is a case about part-time workers. A claim made under Art 45 by a British national, whose application for a residence permit refused by Dutch authorities on ground she was not in gainful employment. A chambermaid at a hotel working 20 hours a week, not earning enough to live on (less than subsistence level, as defined under national law). Is she a worker? Court says yes. o But court qualifies this--The court is flagging up that there are limits to how far it will push what is a worker---you need to be engaged in genuine economic activity, not so small as to be 'marginal or ancillary' . o This ruling means that concept of 'worker' includes parttime employment, provided the work is neither nominal nor minimal. This is so whether the worker is self-supporting, or is wishing to make do with less than the national minimum income (less than subsistence). o Effective and genuine activity: o Kempf v Staatssecretaris van Justitie (1986): Extends Levin: Worker also includes where the person supplements his income by recourse to social security benefits provided by the MS. o In this case, German part-time music teacher working in Netherlands, working 12 hours a week at a school, claiming social security benefits. Does that prevent them being a worker? No, still a worker. So part-time, claiming benefits---still a worker. o So a person in effective & genuine part-time employment cannot be excluded from application of free movement of workers merely because his remuneration is below subsistence level and he supplements it with other lawful means of subsistence (such as benefits). o Irrelevant whether supplementary means comes from member of family in employment (as in Levin); or from benefits (Kempf)---provided that effective & genuine nature of work is established. o Steymann v Staatssecretaris van Justitie (1988): o A German member of a religious community in the Netherlands, applied for a residence perit on ground he was pursuing an activity as an employed person. Involved in a religious community--undertakes tasks eg plumbing, household duties. He's also involved in their commercial activities (they run a disco, bar, laundrette). He's not coming home with a salary, but the community provide for his material neds eg food and board, and pocket money etc---
o ECJ: he's still a worker, as he's involved in running of commercial activities, and he's getting a form of remuneration in return. This could amount to a 'genuine &
effective economic activity'.
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