EXCEPTIONS TO THE FREE MOVEMENT OF

PERSONS

Question 1

Which of the following posts will be regarded as being within the scope of the derogation
contained Article 45(4) TFEU which states that the provisions of Article 45 TFEU “shall not
apply to employment in the public service”?

a. A master of a private fishing vessel engaged in small-scale deep-sea fishing.

b. A nurse in public hospitals
c. A judge

a. This is an incorrect answer. In Case C-47/02 Anker, the ECJ held that when a holder of a
post occasionally exercises rights under powers conferred by public law, such a post is
outside the scope of Article 45(4) TFEU. On the basis of the above the ECJ held that the
activity of master of a small-scale deep-sea fishing vessel did not come within Article 45(4)
TFEU given that the public functions he exercises are sporadic and represent a very minor
part of his activities (the maintenance of safety, the exercise of police powers particularly in
the case of danger on board and the registration of births, marriages and deaths). The core of
a master’s duty consists in the command of the vessel and the management of its crew.
b. This is an incorrect answer. In Case 307/84 Commission v France, the ECJ held that the
post of a nurse in French public hospitals is not within the scope of Article 45(4) TFEU.
c. This is the correct answer. “Employment in the public service” is within the scope of Article 45
(4) TFEU if:
■ The post involves the exercise of rights under powers conferred by public law; and,
■ The holder of the post is entrusted with responsibility for the general interest of the
Member State.

The above requirements must be concurrent. The post of a judge satisfies the above
requirements. A judge exercises rights conferred upon him/her by public law for the purposes
of safeguarding the general interests of the State. He/she is a representative of public
authority and the core of his/her activities is the exercise of the public function.
Question 2

Which of the following persons is likely to be deported by a host Member State on the grounds of
public policy and public security?

a. Hans, who until recently had no criminal record. Two months ago he shot his neighbour by
accident. The weapon he used was a pistol he had illegally acquired. He was fined for this offence
but no punishment was imposed for the accidental killing of the neighbour.

b. James, who is a member of a terrorist group called “Red Robin Hood”. He claims that the
organisation has been wrongly outlawed as its members are robbing rich people in order to
give money to poor people.

c. John, who has been convicted for drug offences several times. As part of his last sentence
the court held that John should be deported at the end of his sentence. Now, almost at the end
of his sentence, John claims that he is a “new person” as a result of difficulties he had to
endure in prison and the revolutionary treatment for drug addicts that he underwent in prison.
The prison’s psychologist certifies that it is unlikely that John will ever again take drugs.

a. This is an incorrect answer. Directive 2004/38 imposes limitations on a Member State in

respect of the application of the public policy and public security exceptions. Article 27(2) of
Directive 2004/38 provides that “measures taken on grounds of public policy or of public
security must be based exclusively on the personal conduct of the individual concerned”.
Further, the personal conduct of the individual concerned must represent a genuine, present
and sufficiently serious threat affecting one of the fundamental interests of the host Member
State. Hans is unlikely to be deported given that a deportation order must be based on the
personal conduct of the person in question. In Case 67/74 Bonsignore, the ECJ held that
Germany was in breach of EU law in the circumstances where the German authorities
ordered deportation of an Italian national permanently residing in Germany, Carmelo
Bonsignore, who shot his brother by accident for "reasons of a general preventive nature"
based on "the deterrent effect which the deportation of an alien found in illegal possession of
a firearm would have in immigration circles having regard to the resurgence of violence in
the large urban cities".

b. This is the correct answer. In Case 41/74 Van Duyn, the ECJ held that past association
cannot count as personal conduct but present membership of an organisation, being a
voluntary act of the person concerned, counts as "personal conduct”. James, being a member
of an organisation outlawed by a Member State represents a threat to public policy and public
security of the host Member State.

c. This is an incorrect answer. Article 27(2) of Directive 2004/38 provides that “previous criminal
convictions shall not in themselves constitute grounds for the taking of such measures”. Case
30/77 R v Bouchereau, the ECJ held that a likelihood of re-offending may be found in the past
conduct although previous criminal convictions do not in themselves constitute grounds for taking
measures on the basis of public policy or public security. The Court stated that it is possible that
past conduct alone may constitute a threat to the requirements of public policy when the
individual concerned has a "propensity to act in the same way in the future" as he did in the past. It
seems that John has become a responsible adult. Further, In order to justify any measure adopted
on the grounds of public policy or public security personal conduct of the individual concerned
must represent a genuine, present and sufficiently serious threat affecting one of the fundamental
interests of the host Member State. In Joined Cases C-482/01 and C-493/01 Orfanopoulos and
Oliveri, the ECJ stated that “the requirement of the existence of a present threat must, as a general
rule, be satisfied at the time of the expulsion”. This judgment was confirmed and expanded in
Article 32 of Directive 2004/38 which provides that if an expulsion order is enforced more than
two years after it was issued, the Member State must check whether or not the person concerned is
currently and genuinely a threat to public policy or public security and in order to do this it shall
take into consideration whether there has been any material change in circumstances since the
expulsion order was issued.

Question 3
Which of the following measures is a host Member State not allowed to adopt under Directive
2004/38/EC?
a. Issue a deportation order against a person who was diagnosed with tuberculosis (infectious
disease caused by various strains of mycobacteria) one month after his arrival in the host Member
State.
b. Issue a deportation order against a person who has resided in the host Member State for 10 years
or more.
c. Issue a deportation order against a person who was convicted for a criminal offence specifying
that such a person is excluded for life from the national territory.

a. This is an incorrect answer. Article 29 of Directive 2004/38 provides that only diseases with
epidemic potential as defined by the relevant instruments of the World Health Organisation and
other infectious or contagious parasitic diseases, if they are the subject of protection provisions
applying to nationals of the host Member State, may justify restrictions on entry and residence.
However, diseases occurring after a three-month period from the date of arrival shall not constitute
grounds for expulsion from the territory of the host Member State.

b. This is an incorrect answer. Under Article 28 of Directive 2004/38 the host Member State is
allowed to issue a deportation order against persons who have resided in the host Member State for
10 years or are minors. However, only imperative grounds of public policy or public security will
justify an expulsion order in such circumstances.

c. This is the correct answer. Article 32 of Directive 2004/38/EC provides that persons
excluded on grounds of public policy or public security can apply for lifting of the exclusion
order after a reasonable time, depending on the circumstances, and, in any event after three
years from enforcement of the final expulsion decision. It is for the applicant to submit
evidence that there has been a material change in the circumstances, which justifies the
revision of the previous decision. In Case C-348/96 Criminal Proceedings against Calfa, the
ECJ stated that an automatic expulsion for life of an EU citizen following a criminal
conviction without taking into account the personal conduct of the offender or whether that
conduct created a genuine and sufficiently serious threat affecting one of the fundamental
interests of society could not be justified on the ground of public policy.