Free movements of persons

 Free movement is important for the EU internal markets, to expand business,

for skilled labour to move around more easily and to show a stronger link
between MS and EU and EU citizens.

Gaining the right to move freely

 The importance of EU citizenship

o In the past free movement depended on the status of the individual
such as employed or self-employed but now free movement is possible
regardless of the status.
o The importance of EU citizenship
 Article 21 states ‘Every citizen of the Union shall have the right
to move and reside freely.’ Furthermore article 21 states that this
right is subject to limitations and conditions.

o Who can be considered as the citizen of the EU?

 Article 21 states ‘Every person holding the nationality of a
Member State shall be a citizen of the Union’ and can access to
benefits and rights.
 Non-EU citizen can access their rights through the EU citizen
(sometimes referred to ‘piggy back’ rule.
 It is important here to note that the EU citizen must has access
their right first before the family member can use indirect means
to access rights- Metock (C-127/08)

o What about non-EU citizens who are not family?

 Their rights depend on the national law of the MS not EU law

o Citizens’ rights to move freely

 Once the person has decided that they want to use their right to
freely move then three things are important to concentrate on:
 The exact nature
 The exact source
 And their status

o Free movements of ‘economically active’ persons

 There are different articles of TFEU governing the categories of
economically active persons namely:
 Employment/workers’ rights- arts 45-48 rights to take up
work, salary and to permanently reside in a host state.
 Self-employed/establishment rights- arts 49-55 right to
set up a permanent base in a host state
 Service providers- arts 56-62 right to enter a host state
and provide services without setting up permanently
 Furthermore TFEU provides further protection through articles
such as article 18 prohibits discrimination.
Workers’ rights Article 45-48 TFEU

 The governing secondary legislation in this field is Directive 2004/28 and

Regulation 1612/68.
 The meaning of worker (the TFEU and the Secondary legislations are silent
on this):
o Hoekstra (nee Unger) v BBDA (75/63) – worker is a union concept and
the court alone can define the term (this shows that MS can’t stop
anyone one under any narrow definition) and it was also stated that a
worker who has lost his job but was capable of finding another should
also be considered as a worker
o Levin v Staatssecretaris (53/81) –a part-time employee should be
considered as worker, provided the work is ‘real’ or genuine work of an
economic nature and not nominal or minimal
o Kempf v Staatssecretaris Van Justitie (139/85) - a part-time music
teacher (from Germany), even though in receipt of supplementary
benefit (in the Netherlands) to bring his wage up to minimum levels
came within the term
o Steymann v staatssecretaris Van Justite (196/87) – a member of a
religious community provided with his ‘keep’ and pocket money, but not
formal wages, was held to be a worker
o Bettray v staatssecretaris Van Justite (344/87) – an important case to
demonstrates the limits of the term ‘worker.’ It was held that, as the
position was artificially created by the government as part of a drug
rehabilitation programme, he could not be considered to be engaged in
‘economic activity’ of a ‘genuine’ nature.

 Job seekers
o A person seeking for work and has a genuine chance of finding work
should be allowed to stay for three months providing he has a valid
passport or a valid ID card- Article 6 of Directive 2004/38 (R v
immigration Appeal tribunal ex p Antonissen (C-292/89))
o Article 14 of directive 2004/38 states ‘as long as they do not become
an unreasonable burden on the social assistance system of the host
Member State.’ This show job seekers don’t have as much protection.

Basic rights afforded to workers by TFEU

 Article 45 states that, worker have:

o The right to accept employment actually made and to move freely
within the host state for this purpose;
o The right to reside in the host country for the purpose of employment
under the same rules as enjoyed by nationals; and
o The right to remain in the host state after having been employed in that
state(following retirement or incapacity)

 The right to exit, entry and residence of workers

 o Article 4 and 5 of Directive 2004/38 concerns with rights of exiting a
home state and entering a host state
o Article 4 states that a home state can allow a migrant to leave the state
with a passport and a host state cannot make it difficult for a migrant to
enter the state by asking for a visa or other documents
o If declared to an office of registry the right to remain as a worker
seeking work can be extended. (article 8 of Directive 2004/38)
o The right to become a permanent residence is available if resided for
more than a continuous 5 years. (continuous meaning being out of the
state for more than 6 months)
o The right may be lost if there is a continuous absence of more than two
years

 The right to be treated equally to nationals

o Art 45 (3) (c) TFEU reiterates Arts 1 and 2 of Regulation 1612/68 which
states that migrants must not discriminated against on the basis of their
employment, nationality, remuneration and other conditions of work
and employment. This is also stated in article 18 of TFEU.
o Article 7 – 9 of Directive 1612/68 state that worked should be treated
equally outside their area of employment such as provision of social
advantages, access to vocational training and housing.
o Whilst it is clearly outlawed discrimination on basis of nationality it is
recognised, especially in article 3 of Regulation 1612/68, that some
posts of jobs will require a certain barrier such as linguistic skill. This
was seen in the case of Groener v Ministry of education (379/87) which
stated that a teacher had to know Gaelic in order for them to be hired.
This was a requirement for both nationals and internationals. This was
seen as lawful criteria.
o This is also supported in art24 of Directive 2004/38

 The approach of ECJ in relation to equal treatment

o The court on numerous occasions been called upon to clarify the
position of social advantages. This is not interpreted restrictively.
o Ministere Public and Evens ONPTS (207/78) the court developed a
formula (AKA Even Formula) and stated that a social advantage is a
benefit not directly linked to a contract of employment but granted to
worker because of their status or as a result of their residency.
o Netherland v Reed (59/85) stated that an unmarried migrant worker
could enjoy the presence of his partner (who had failed the right of
residence independently) as long as this same right was given to
nationals of the host state. This is now incorporated in Art 3 of Directive
2004/38. Although article 2 (b) of the same directive states that in order
to be someone’s partner one need to be registered.
 o In the past it was seen only the residing could claim social advantages
however two cases have illustrated that this position has changed:
 Collins (C138/02) stated that ‘job seekers allowance’ could be
claimed by an EU national seeking employment.
 Bidar (C209-03) states that subsidiary student loan could be
claimed by the person with ‘sufficiently integraty’

 Further development of rules on discrimination

o Indirect Discrimination

O’Flynn v Adjudication office (C-237/94) in which ’a burial grant could

be given to workers so far as the burial was held in UK,’ was held as
indirect discrimination.

 Access to employment market

o The ECJ is prepared to go beyond merely prohibiting measures that
actually discriminate and has highlighted that any measures free
discouraging movement will prohibited.
o Union Royale Belge des Societes de Football Association ASBL v
Boseman (C-415/93) states that a movement of footballers from one
state of the union to another seen as an obstacle to free movement.

 Justification of indirect discrimination and restrictive measures

o In the case of Gebhard (C-55/94) the court gave reasons for when a
hinder to free movement can be objectively justified. These are:
 The rules must be applied in a non-discriminatory manner
 They must be justified by imperative requirements in the general
interest
 They must be suitable for securing the attainment of the
objective which they pursue
 They must go beyond what is necessary to attain it
(proportionality)

 The right for workers to remain even after employment has ceased
o Article 45 (d) TFEU and Art 17 of directive 2004/38 allow the worker to
remain in the host state even after retirement or when they become
permanently incapacitated.
o Art 16 states that in order to receive permanent residency the worker
must reside there for a continuous time of five years
o Furthermore one can retire and reside in the host state if:
 If they worked in the state for more than 12 months prior to
retirement
 Have resided there continuously for more than 3 years
 o Similarly if a worker is permanently incapacitated due to an industrial
injury then they are allowed to reside irrespective of their time period
o Finally if the worker becomes ill due to another injury then they must
have resided there for a continuous time period of two years.

 Right of workers who live in one state but work in another

o If the worker can demonstrate that :
 3 years of continuous residence and employment in the territory
of a host state where they wish to remain and
 They returned there at least once a week
They will have the right of permannat residency in the state in which
they are domiciled, after ceasing work in the second host state (art 17
directive 2004/38)

 Rights of workers’ families

o Article 2 and 3 of Directive 2004/38 states that a family member
includes:

a) The spouse;

(b) The partner with whom the Union citizen has contracted a
registered partnership, on the basis of the legislation of a Member
State, if the legislation of the host Member State treats registered
partnerships as equivalent to marriage and in accordance with the
conditions laid down in the relevant legislation of the host Member
State;

(c) The direct descendants who are under the age of 21 or are
dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the
spouse or partner as defined in point (b);

(e) Any other family members, irrespective of their nationality, not

falling under the definition in point 2 of Article 2 who, in the country
from which they have come, are dependants or members of the
household of the Union citizen having the primary right of residence, or
where serious health grounds strictly require the personal care of the
family member by the Union citizen;

(f) The partner with whom the Union citizen has a durable relationship,
duly attested.

 Rights to be enjoyed by workers families

o Where family members are citizens of one of the countries of the EU
then they can enjoy their rights. (Art 20 TFEU) and (directive 2004/38)
 Rights of family member to enter exit of reside
 o If family member are EU citizen they can enjoy same rights as the
worker.
o If the family member in a non-EU citizen then they might be required to
provide an entry visa or valid residence card (Art 5 directive 2004/38)
o Article 6 and 7 of Directive 2004/38 states that the family members
have the right to reside with the worker for three month whilst the
worker is looking for a job. In the case of non-EU citizens they will need
to require residency cards.
o Once the family member has been residence of the host state for more
than 5 years then they will have the right to reside permanently. (Article
16, 17, 18 for non-EU citizen nations Directive 2004/38)

 Families and the right to take up employment

o Art 45 TFEU gives right to family member take up employment and in
doing so they will have independent rights. Art 23 Directive 2004/38
gives the same right to non EU family member.

 Families and the right to education

o Under Art 12 Reg 1612/68 children of workers residing in the host state
will have the right to access general education, apprenticeship and
vocational training schemes. This includes right to education grants
Michel S (76/72). In the case of R v London Borough of Ealing and SS
for education and skills ex p Bidar (C209/03) the ECJ interpreted Art 24
of Directive 2004/38 in line with art 12 of Reg 1612/68.
o In the case of Echternach and Moritz v Netherlands Ministry for
Education and Science (389 and 390/87) the ECJ stated that the child
of the migrant worker could stay in the host state to finish their
education even when the parents had left. In Gaal (C-7/94) the child
was allowed to finish the course even when they had reached an
independent age of 21.
o It isn’t clear whether the spouse/partnerships would be allowed such
wide rights of education however it is clear from art 18 of TFEU and Art
24 of Directive 2004/38 [for non-EU families] that their rights have been
applied equally.

 Families and right to remain; death or divorce

o Directive 2004/38 states that the residency of the family is unchanged if
the worker dies or leaves the country, however a non-EU citizen will
need to reside for 12 months (Art 12 of Directive 2004/38) in order to
access this right.
o Christini SNCF (32/75) Confirms that surviving family of a deceased
will continue to enjoy equal treatment.
 o Divorce, annulment or termination of a registered partnership should
also not affect the right of family members to reside Art 13 of Direct
2004/38

Free movement: Limitations on Workers’ rights

 Restriction on entry, exit or residence on grounds of public policy, public

security and health
o Article 45 (3) TFEU states that a state can deny entrance to an EU
citizen or his family on reasons of public policy, public security and
health
o Secondary legislation and the limitation of rights
 Art 27 of Directive 2004/38 states the doctrine stated in Art 45
(3) of TFEU and expands and by saying these measures must
not be invoked to serve economic ends.
 These measure must be proportional and be based exclusively
on personal conduct (previous convictions do not automatically
all the state to deny a worker his right of entry).
 The personal conduct must be 1) genuine, 2) present and 3)
sufficient serious threat - Rutili v Ministre de I’terieur (36/75)
 The host state has 3 months to request information from a home
state on an individual and a home state then has 2 months to
reply.
 Should a host state expel an individual then the home state
must allow that individual entry.
o Procedural safeguards
 Article 28, Directive 2004/38 provides what considerations a
host state must take into account when making a decision to
expel an individual. These include:
 his/her age,
 state of health,
 family and economic situation,
 social and cultural integrations into the host state
 His/her link to the country of origin
 An expulsion decision may not be taken against Union citizens,
except if the decision is based on imperative grounds of public
security, as defined by Member States, if they:
 (a) have resided in the host Member State for the
previous ten years; or
 (b) are a minor, (for the best interests of the child)
 Art 30, Directive 2004/38 states that states that any expulsion
must be in full and writing
 Art 31, Directive 2004/38 state that there must be an appeal
procedure
  Art 32, Direct 2004/38 state that the person who is expelled can
bring an action for the expulsion to be lifted after a reasonable
time which is no longer than 5 years.

o The approach of the ECJ to restriction on entry, exit or residence

 The decision to expel a person must be proportional and
objectively justified.
 The personal conduct must be 1) genuine, 2) present and 3)
sufficient serious threat - Rutili v Ministre de I’terieur (36/75)
 This was extended in the case of R v Boucherea (30/77) the
court provided that the threat must ‘affect one of the
fundamental interest of the state’
 Adoui and Cornuaille V Belgian state (115 and 116/81) (the
French prostitute case) the court held that excluding someone
on the basis of providing an ‘immoral standard’ was not
proportional.
 Previous convictions must not be on the grounds of expulsion
unless they provide present threat:
 In the case of R v Boucherea (30/77 it was held that past
conduct alone may not suffice however it may be
sufficient to constitute a present threat if the conduct can
be considered to be sufficiently serious.
 Bonsignore v Oberstadtdirektor of the city of Cologne
(67/74) in which it was held that general preventive
measure was not reasonable to expel someone.

 Restrictions on ‘employment in the public health service’

o Art 45 (3) TFEU states that article 45 do not cover public service.
Therefore the limitations does not include right to entry etc.
o ‘Public sector’ isn’t defined in the treaty but is defined in the courts;
 In the case of Sotgui v Deutsche Bundespost (152/73) it was
held that art 45(4) MS in relation to the terms and conditions of
employment as it applies only to access to employment.
 In Commission v Belgium (RE Public Employees) (149/79)
stated that all post of Belgium public service, irrespective of
duties preformed, was outside the scope of Art 45 (4) TFEU. To
become within the ambit of art 45 (5), the court held that
employment must involve ‘direct or indirect participation in the
exercise of powers conferred by public law and duties designed
to safeguard the general interests of the state or of other public
authorities’ while higher post are more likely to hold sensitive
information and fall under art 45(4) TFEU lower posts such as
cleaners and night-watchmen who sensitive information may
also hear it can also fall under art 45 (4).
 Some examples of these include the armed forces, police,
judiciary, tax authorities and high-ranking civil servants.
 The commission in1988 (ON no 72/2) provided some guidance
to which would be unlikely to be covered:
 Public health services
  Teaching in state education establishments
 Research for non-military purpose in public establishment
 Public bodies responsible for administrating commercial
services
 EU recognises the MS the need to preserve their own identity
however it is not prepared to allow them to do this to the
detriment of free movement.