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The Substantive Law of the EU Chapter 8: Introduction to the Free Movement of Persons A. Introduction While today right for people to move freely from state to state is glorious feature of common market, this was not also so. Took 40 years, because substantive provision of Original treaty of rome did not provide a general right of free moventm of all people and companies - to qualify the company/individual had to be both a national of a Member State and be engaged in econ activity, a self employed person, or as a provider of services. Those that fall into that enjoy free movement of persons subject to defences. Principle of non-discrimination, at minimum, underpins art 45,49, 56. Migrant must enjoy same treatment as nationals. In more recent years, court moved beyond discrimination model and returning to removing discriminatory obstacles or restrictions. Theory underlying art 45 - 62, that 'factors of production' (workers, self employed, and service providers) could move freely between Member State but cultural, economic, linguistic and social factors restrained this movement in early days of EU. EU went some way to overcome obstacles: secondary legislation, prograMember State like "Socrates" to facilitate mobility of students, and three directives to allow retired, students, and those with independent means. Showed gradual erosion of link between econ activity and free movement and a shift from viewing migrants simply as "factors of production" but as people! Culminated in Maastricht - "citizen of Union". "Unionship is destined to be the fundamental status of nationals of the Member State" Grzelczyk. CRD directive helped consolidate right of citizens of Union to move and reside freely. Persons always been more sensitive area that free movement of goods. Start by looking at principles common to the Treaty provisions on persons, beginning with most fundamental questions: does EU law apply at all?
B. THE SCOPE OF APPLICATION OF THE TREATY PROVISIONS ON FREE MOVEMENT OF PERSONS Jurisdictional question: For free move provisions to apply, claimant must fall within 1) personal, 2) material, 3) territorial scope of Treaty and 4) C must be able to rely on Treaty provision against particular defendant.
1. PERSONAL SCOPE It covers three elements:
1. Is individual or corporation a national of a Member State? (Art 20(1))
2. Are they engaged in an economic activity (where necessary)?
1. (Decisive factor according to Jundt which brings activity Within ambit of provisions of treaties)
2. No need to make profit, but cannot be completely voluntary (jundt)
3. Can they be classified as worker, self employ, or service provider, or a citizen? Here, they go under art 21(1), no need for econ active, as court confirmed in Baumbast.
2. MATERIAL AND TERRIOTRIAL SCOPE
2.1 The Need for an Inter-State Element Must move from one Member State to another to trigger art 45, 49, 56, and 21(1). This requirement of interstate is make explicit in art 49 which refers to the freedom of est of national of a Member State in territory of another Member State.
2.2 The Wholly Internal Situation Saunders: brit cannot use EU law to challenge undertaking given to crim court in england that she return to NI and not to visit eng or wales for 3 years. Gauchard: French supermarket expanded without permission, could not invoke EU law. Moser: hypothetical possibility of job does not trigger EU law Surinder Singh: Can invoke EU law against own Member State when they are exercising rights of free movement. Indian nationals, worked 2 years in germany, then moved to uk, court said that mrs sing might be deterred from exercising her Union law rights of free movement if, on returning to her state of origin, the conditions of entry or residence were not at least equivalent to those which she should enjoy on entering territory of another state, including her right to be accompanied by spouse.
2.3 Abuse and Fraud. Centros 1999 made clear that merely taking advantage of EU rights does not constitute abuse, whatever the motive. Article 35 CRD attempts to deal with some of these problems. It provides: Member State can adopt measures to refuse rights conferred by this Directive in cases of abuse of rights or fraud, such as marriages of convenience. Problem with defining abuse is that the Court has long made clear that motive for moving is not material. Courts case law seems to have narrowed down principle of abuse rights down almost exclusively to marriages of convenience. (Metlock et al v Minister for Justice, Equality and Reform 2008).
2.4 Reverse Discrimination Why does migrant like mrs sing that takes adva of EU rights be in more favorable position than nationals who have not migrated? Answer is twofold. One, acts as jurisdictional divide between application of EU law and app of domestic law: EU law will apply where there is an inter-state dimension, domestic law apply to facts wholly internal to Member State. Secondly, 'virtual representation': migrants cannot necessarily gain access to host states political processes so union law intervenes on their behalf to correct laws which discriminate against them. But many still critical of wholly internal rule (eg. Trydonidou), and prominently AG Sharpston in the Walloon case. She thought time had comet o abolish wholly internal rule: two reasons. One, in goods scenario, customs duties applies both at national and regional frontiers to give effect to edict in Article 26(2). Two: Based on citizenship provisions of treaties which challenge sustainability in its present form of doctrine on purely internal situations, esp in context of this case which comes as close to a classif cross border situation as a supposedly internal situation can. Felt that Flemish rule was indirectly discriminatory, against art 18. But court did not follow AG Sharpston idea. But her opinion reveals problems of reverse discrim.
2.5 Erosion Rule Despite Court's attempts to maintain wholly internal rule, given that it takes so little do displace it, some cases suggest that rule is being eroded. Deliege: Court said EU law applied because there was "degree of extraneity" derived from fact that athletes participated in a competition in another Member State. Carpenter: EU applied and prevented deportation from UK of Filipino woman because her husband was British man who provided services to advertisers in another Member State, and by implication, needed her to take care of kids so he could do this.
3. CAN THE TREATY PROVISION BE INVOKED AGAINST THE DEFENDANT?
Brings us to vexed Q of direct effect. Clear that free movement provisions are directly effective. DE of 45 first acknowledged in French Merchant Seamen and confirmed in Van Duyn: which said that art 45(1) and 45(2) imposed a suff precise obligation to confer direct effect. 49 has DE (Reyners), 56 (Van Binsbergen),
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